Parad0x and Pragmatism: ?Virtual Immunities' and the Imposition of Liability in Negligence Claims Against Local Authorities

Author:David Humphreys
S.S.L.R ‘Virtua l Imm unit ies’, Neglig ence Claim s and Local Author ities Vol.4
Paradox and Pragmatism: ‘Virtual Immunities’ and
the Imposition of Liability in Negligence Claims
Against Local Authorities.
Dav id Hum ph reys
The field of public authority liability has attracted m uch attent ion th rough apparent
uncertainty of law. The issue of imm unit y for local authorities, due to policy
consideration s, has received divid ed judicial and academic opinion. This paper
journ eys beyond th e h ypothet ical realm of im m unit ies - those afforded for policy
reasons - and ar gues t hatvirtu al imm unities’, which affect p otential claiman ts on a
pract ical level, are far more dam aging to t he judicial process. This paper argues that
recent legal aid reform , and ot her financial limitations on access to the courts, will
deny some of the most vulnerable people in society access to bring a claim in
negligen ce in t he ed ucation cases.
In a criticism of the cur rent system, this paper ident ifies a series of paradoxes wh ich
must be consid er ed before an y resolution can be sough t. Namely, the paradox that is
imp osing liability for past harm at the cost of poten tial further harm . Second ly, th e
notion that public funding is often used to sue public bodies. Thirdly, the lack of
inter ven tion by the judiciary actually removes any possibility of a solution
indep en dent of the cou rts. This paper dispels the policy considerations which have
proven a facet of public au thority liability, whilst contemplatin g th e validity of a non-
inter vention ist ap proach to dea ling wit h liability in n egligen ce in the educatio n cases.
he legal system of England and Wales does not, nor intends to, facilitate an
easy route for claimants seeking to challen ge a public au thorit y in negligen ce;
rather, we have an un sett led system with bot h the Law Comm ission and th e
judiciary, at home and in Strasbourg, providing illusions of a solu tion.1 It is not until
we st ep beyond the hypothetical realm and con sider the practical application of the
law, that we can fully realise it s tru e inad equacies. This paper will firstly consider th e
1 Lord Hoffman, ‘Refor ming the Law of Public Authority Negligence’ (The Bar Council La w Reform Lecture
2009); Law Commission, Admin istrative Redress: Public Bodies and the Citizen (Law Com No 187, 2008)
[2014] Sou tha mpton Stu dent La w Review Vol.4
unsettled law relating to public authority liability, whilst arguin g that the judiciary
takes a consequ en tialist view towar ds th e imposition of duties of care. Secondly, this
paper will develop a n otion of ‘virtual immun ities an d demonstr ate how indirect
barriers to justice, as a result of fin ancial restrict ions, are in pr actice more da magin g
than explicit immun ities. Finally, it will conclud e that despite the weakness of th e
assum ption-based policy con siderations cited by th e ju diciary in rejecting claims,
local authorities m ay be better placed to act with out fear of litigation . Through out
this process, three paradoxes will become apparent. Firstly, th e ‘greatest good
paradox’ which presents us with th e dilem ma of awarding damages for past harm , at
the risk of future harm. Secondly, thefun ding paradox’, that public funding is often
used to sue pu blic bodies. Thirdly, theliability paradox’ question s the fact that the
rejection of liability in court , acts to decrease the likelihood of a solution in dependen t
of the judiciary.
The seven ju dge panel, which pr esided over X (Min ors) v Bedfordshire Coun ty
Council, held that a local au thority owed no direct d uty of care to th e claiman ts
whilst exercising its statutory function. 2 This decision was based on policy
consideration s and the all-encompassing “fair, just and reasonable” test, which I
shall discu ss in det ail below.3 I shall argue that this test , from Caparo In dustries plc v
Dickm an, 4 has an essentially forwar d-looking app lication in public authority liability
cases; it forces the judiciary to ask a moral or ph ilosophical question when fin ding a
duty of care. Do we im pose liab ility on a local educat ion authority and award
damages to a claiman t for past h arm if, in doin g so, we reduce th e pool of fund ing for
the education authority which may be used to pr event furth er harm ?
Historically, a blanket immu nity would prevail in order to protect the efficient
functionin g of a public body. 5 However, th e European Court of Human Rights
rejected an unm itigated refusal to find a duty of care, on the ground that this denied
claim ants an access t o just ice in br each of Article 6 (1) of the European Convention on
Hu man Righ ts. Following this, it has becom e incr easin gly im portant to hear claims
on their facts. 6 Despite this, a syst em of ‘virtual immunity’ has proven a problematic
facet of English tort law. 7 This has arisen as a r esult of the jud icial discretion to deny
a duty of care, based on policy considerations.8 My hyp othesis is simple; this ‘virtual
immu nity’ mu st be extend ed to include in direct and implied bar riers to access the
courts, particularly when dealin g wit h the m ost vulnerable claimants, such as
children. This paper will focus on the financial restrictions, which act independen t of
the judiciary, following th e r ecent legal aid refor m an d the su bsequent effect on the
education cases.9 The importance of this issue, and its relation to the doctrin e of the
separat ion of powers an d fundamental right s, gain ed new significance on 5th Mar ch
2 Duncan Fairgrieve, ‘Pushing back the bo undaries of public authority liabil ity: tort law enters the classroom’
[2002] PL 288, 291; X (Minors) v Bedfordshire County Council [1995] 2 AC 633
3 Caparo Industries plc v Dickman [1990] 2 AC 605, 618
4 Caparo Industries plc v Dickman [1990] 2 AC 605
5 Hill v Chief Constable of West Yorkshire [1989] AC 53, 63
6 Osman v United Kingdom [1998] EHRR 101
7 Lord Bingham, ‘The Uses of Tort’ (2010) 1 JETL 3, 15; Francois Du Bois, ‘Human Rights and the Tort
Liability of Public Authorities’ (2011)127 LQR 589
8 Keith Stanton, ‘Pro fessional negl igence: duty of care methodology in the t wenty first century’ (2006) 22 PN
9 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will come into force on 1 April 2013. The
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision)
Order 2013, s 3

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