Revision Hub / Module 1 · The Negligence Chain
Public Bodies
Snapshot
After Robinson v CCWY [2018] UKSC 4, public bodies are not a special category for the law of negligence: they are subject to the same duty rules as private defendants. The decisive question is therefore whether the ordinary rules of duty cover the facts — and the most important application is the act/omission distinction. A public body that causes harm by a positive act may be liable on ordinary principles; one that merely fails to confer a benefit on the claimant by exercising its statutory powers usually owes no common-law duty, unless an omissions exception (assumption of responsibility, control, creation of danger) applies. Parallel HRA 1998 claims (arts 2, 3 ECHR) operate on a separate logic and can succeed where negligence fails.
1. Why the issue exists
Public bodies are creatures of statute. Their powers and duties — to investigate crime, take children into care, repair roads, fight fires, regulate banks — are conferred by legislation that fixes both the scope of action and (often) a discretionary judgment about how the power should be exercised. Three constitutional and policy concerns drive judicial caution about superimposing common-law duties on the statutory architecture.
- Separation of powers. Resource allocation between competing public goods is for the executive and legislature, not the courts. Holding a council liable for not deploying enough social workers, or police for not allocating enough officers to an investigation, requires a judge to second-guess polycentric decisions about budgets and priorities.
- The statutory scheme. Where Parliament has created a regime with its own remedies (complaints procedures, judicial review, ombudsman), courts are reluctant to graft on a tort duty Parliament did not provide — the "inconsistent with the statutory scheme" objection in Stovin v Wise and Gorringe.
- The policy/operational distinction. The older approach in X (Minors) v Bedfordshire CC [1995] 2 AC 633 filtered claims by distinguishing non-justiciable "policy" decisions (allocation of scarce resources, ranking of objectives) from justiciable "operational" decisions (the manner of implementation). The distinction was always slippery and is largely superseded but still surfaces as background.
Until Robinson, the orthodox approach treated public bodies as a special problem solved at Caparo's "fair, just and reasonable" stage. As Lord Reed stressed, that formulation has been over-used: the default test in established categories is the incremental approach; Caparo applies only in genuinely novel cases. Public bodies are no longer parked behind a special "fair, just and reasonable" gate.
2. The police
The police line is the cleanest illustration of the post-Robinson position: early cases entrenched a near-blanket immunity now carefully unpicked.
- Facts
- Mother of the Yorkshire Ripper's last victim sued police for failing to apprehend Sutcliffe.
- Holding
- No duty: the victim was one of a vast class with no proximity, and policy concerns (defensive policing, diversion of resources) told against liability.
- Why it matters
- Re-read in Robinson not as a "police immunity" but as orthodox omission principles applied where there was no assumption of responsibility.
For two decades Hill was applied broadly. In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, a witness and victim of the Stephen Lawrence attack sued the Metropolitan Police over the way he had been treated during the investigation. The House of Lords struck the claim out: imposing a duty would inhibit the way the police investigate serious crime. Smith v Chief Constable of Sussex Police [2008] UKHL 50 (heard with Van Colle) extended the same protection to a man who had repeatedly warned police that a former partner was threatening to kill him; no common-law duty arose, though a parallel art 2 claim might lie.
- Facts
- Michael's 999 call reporting her ex-partner's threat was downgraded; she was murdered before officers arrived.
- Holding
- No common-law duty (5–2): taking the call did not amount to assumption of responsibility; ordinary omission principles applied.
- Why it matters
- Leading modern statement of the omission/no-assumption analysis for police. Art 2 claim survived to trial.
- Facts
- An elderly woman was knocked over during the attempted arrest of a suspected dealer in a busy Huddersfield street.
- Holding
- Duty owed: a positive act causing foreseeable physical injury to a bystander — textbook negligence; Caparo is not a universal test, established categories supply the duty by analogy.
- Why it matters
- Modern starting point: public bodies are not in a no-duty sandbox; the act/omission line does the work.
In DSD v Commissioner of Police of the Metropolis [2018] UKSC 11, the "Black Cab Rapist" John Worboys' victims could not establish a common-law duty for the negligent investigation, but the Supreme Court held art 3 ECHR imposes an investigative duty on the state in cases of serious ill-treatment, breached on the facts. DSD is the cleanest authority for keeping the common-law and HRA tracks conceptually separate (see Lord Hughes's rejection of using a Convention claim "to serve substantially the same purpose as an action in tort").
For police cases, distinguish "making things worse" (positive act — Robinson) from "failing to act" (omission — Michael, Hill). Frame as ordinary duty rules, not a special police category.
3. Emergency services
Three contrasting authorities show how the act/omission line is drawn for the rest of the emergency services.
- Facts
- LAS accepted a GP's call for an asthmatic patient and gave repeated assurances; no ambulance arrived for nearly 40 minutes; she suffered respiratory arrest and brain damage.
- Holding
- Duty owed: by accepting the call and identifying a specific patient with assurances, LAS had assumed responsibility; distinguishable from fire/police because of the individual singling-out and direct reliance.
- Holding
- The fire brigade owes no duty merely by attending; it becomes liable only if it positively makes things worse (here, ordering the sprinkler system off).
- Why it matters
- Classic operational-level act/omission distinction: failing to fight the fire effectively is not actionable; destroying a working safety system is.
- Facts
- Lyme Bay canoeing tragedy: HM Coastguard's negligent direction of search-and-rescue allegedly delayed locating casualties.
- Holding
- No duty: coastguard, like the fire brigade, owes no private-law duty to respond effectively; liability arises only if its actions positively worsened the casualties' position.
The pattern across the emergency services is consistent. Fire and coastguard are treated like the police: ordinary omission principles apply; failure to rescue, however careless, is not actionable in negligence absent assumption of responsibility or active worsening. Ambulance is the apparent exception, best read narrowly — Kent v Griffiths turns on specific assurances given to a specific patient. Examiners reward candidates who articulate why ambulance is different (identified individual, direct reliance, the medical/transport function), rather than treating the difference as a brute fact.
4. Social services and child protection
The fastest-moving area, and the one examiners most often probe.
- Facts
- Conjoined appeals on social-services failures — children left in abusive homes or wrongly removed from safe ones.
- Holding
- No common-law duty: Lord Browne-Wilkinson cited defensive social work, fragile inter-agency cooperation and the risk of cutting across the statutory scheme.
- Status
- The blanket policy bar is no longer good law (disapproved in D v East Berkshire; replaced in CN v Poole BC) but remains the doctrinal anchor.
In D v East Berkshire NHS Trust [2003] EWCA Civ 1151, the Court of Appeal held that X v Bedfordshire's policy bar could not survive the HRA: after Z v UK the same facts would be litigable under arts 3 and 8 anyway, so the "chilling effect" was illusory. A duty could be owed to the child (though not to parents wrongly suspected).
- Facts
- Disabled children placed by the council in housing next to abusive neighbours sued for failure to remove them.
- Holding
- No duty: public authorities owe no common-law duty merely from statutory powers/duties to protect; liability follows the private-defendant routes (creation of danger, assumption of responsibility); failure to exercise a power is a pure omission.
- Why it matters
- Re-aligns social-services case-law with general omissions doctrine; X v Bedfordshire reinterpreted as right on ordinary omission grounds, not special policy ones.
- Facts
- Strike-out appeals on whether councils assumed responsibility to children known to be abused at home but not (or only briefly) accommodated under the Children Act 1989.
- Holding
- Cases allowed to trial: assumption of responsibility is fact-sensitive; two routes — (i) duties to "looked-after" children; (ii) duties arising from a specific safeguarding step amounting to assumption of responsibility.
- Why it matters
- Post-Poole clarification: assumption-of-responsibility analysis remains live in social-services cases on the right facts.
5. Highway authorities
The two leading authorities are the locus classicus that statutory powers are not converted into common-law duties by the bare fact of foreseeable harm.
- Facts
- Motorcyclist injured at a junction with a blind spot caused by a bank on adjacent land; the council had power to require its removal but had not used it.
- Holding
- No duty (3–2): Lord Hoffmann held a statutory power alone does not generate a common-law duty; something more is needed — typically representation or reliance grounding assumption of responsibility.
- Facts
- Claimant injured in a head-on collision over a hill brow; she sued the highway authority for failing to paint a "SLOW" warning under its Road Traffic Act 1988 power.
- Holding
- No duty: Lord Hoffmann reaffirmed Stovin — a common-law duty cannot be parasitic on a public-law power without an additional private-law element.
- Why it matters
- With Stovin, locks in the "no duty from bare power" rule later deployed in Poole.
6. Article 2 ECHR and the HRA 1998 parallel
Closure of common-law omission routes has driven claimants to the Convention track. Under HRA s 6 it is unlawful for a public authority to act incompatibly with a Convention right; s 6(6) "act" includes failure to act. The key heads:
- Article 2 (right to life): a positive operational duty to take reasonable steps to protect an identified individual at real and immediate risk of death from third-party criminality (Osman v UK (2000) 29 EHRR 245).
- Article 3 (inhuman/degrading treatment): substantive duty to protect plus an investigative duty (DSD).
Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 is the leading domestic authority on the art 2 operational duty. A witness in a forthcoming criminal trial was murdered by the defendant after intimidation that the police had been warned about. The House of Lords held the strict Osman threshold ("real and immediate" risk of which the police knew or ought to have known) was not met on the facts, but accepted that, where met, the art 2 duty generates a HRA remedy independent of negligence. Van Colle was heard alongside Smith; the dual decision is the canonical illustration that the common-law and HRA tracks proceed on different tests.
Two practical points for examination purposes. First, Convention claims are against the State (the public authority and ultimately HMG) and aim at rights-vindication, not tort compensation; damages tend to be modest. Second, DSD is express that the two tracks must not collapse into each other: a Convention claim is not a back-door negligence claim and should not be argued as one.
7. Application framework
- Identify the body and conduct. Name the statutory regime (Children Act 1989, Police Act 1996, Highways Act 1980).
- Classify: act or omission? Positive act causing injury (Robinson) — ordinary negligence. Failure to confer benefit by exercising a power — omission, default no duty.
- If omission, find an exception. (i) Assumption of responsibility (Kent; HXA/YXA); (ii) creation of danger; (iii) control over source/third party. Statutory function alone is not enough (Poole; Gorringe).
- If act, run ordinary duty/breach/causation. Established category by analogy; Caparo only if genuinely novel (Robinson).
- Run the HRA track in parallel. Real and immediate risk under art 2 (Osman; Van Colle)? Art 3 ill-treatment and investigative breach (DSD)? Plead as separate causes of action.
8. Common pitfalls
9. Exam checklist
- Opened with Robinson: ordinary rules apply; no special category.
- Classified conduct as act or omission and signalled which exception (if any) applies.
- Cited Michael: taking a call is not, without more, assumption of responsibility.
- Distinguished Kent v Griffiths from Capital & Counties and OLL on assumption of responsibility.
- Used Poole and HXA/YXA for social services; X v Bedfordshire as historical anchor only.
- Used Stovin and Gorringe for "bare statutory power" arguments.
- Pleaded HRA art 2 / art 3 separately, citing Osman, Van Colle, DSD.
- Closed with the act/omission framing: did the body actively make things worse or merely fail to make them better?