1 The literature on the topic is voluminous. See the references cited by Lord Nicholls of Birkenhead in Stovin v. Wise [1996] A.C. 923, 934-935. Subsequent books and articles include Todd, S., The Law of Torts in New Zealand (2nd ed., Wellington 1997), pp 342–362Google Scholar, Rogers, W.V.H., Winfield and Jolowicz on the Law of Tort (15th ed., London 1998, pp. 143–153)Google Scholar, D. Brodie, “Public authorities—negligence actions—control devices” (1998) 18 L.S.1; A. Bartlett Q.C. and J. Waite, “Searching for Duties of Care: the Fire Brigade Cases” (1998) 14 Const. L.J. 20. It is beyond the scope of this paper to consider the increasingly important dimension provided by liability for damages for non-implementation of directives under EU Law.

2 E.g. under the principle of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. [1964] A.C. 465, as explained by the House of Lords in Henderson v. Merrett Syndicates [1995] 2 A.C. 145. See also White v. Jones [1995] 2 A.C. 207. This point remains important notwithstanding the judicial retreat from the even broader approach to liability for pure economic loss enshrined in the decision in Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520: see especially Murphy v. Brentwood District Council [1991] 1 A.C. 398.

3 The existence of a cause of action in respect of negligently inflicted psychiatric damage was recognised by the House of Lords in Bourhill v. Young [1943] A.C. 92. The scope of liability was extended by the House in McLoughlin v. O'Brien [1983] 1 A.C. 410 (distressing sight of P's husband and children at hospital after accident regarded as within the “immediate aftermath” of the accident) and Page v. Smith [1996] A.C. 155 (special rules limiting liability for psychiatric damage not applicable where P is the “primary victim”). These cases provide the background to claims based on alleged negligence in the performance of statutory functions causing psychiatric damage, in situations where there is no physical accident involving personal injury or property damage (as in X (Minors) v. Bedfordshire County Council below).

4 The position of the Crown as an effective defendant was regularised by the Crown Proceedings Act 1947. No claims by or against the Crown are to abate or be affected by the demise of the Crown (1947 Act, s. 32). Local authorities, as the creatures of statute, may be (and with increasing frequency have been) abolished. However, provision is almost invariably made for the transfer of rights and liabilities to a successor authority or residuary body. In Anns v. Merton London Borough Council [1978] A.C. 728 the council was held liable as successor to Mitcham Borough Council.

5 Public authorities are commonly (but not invariably) large organisations with large budgets. They may carry liability insurance or be so large as to be self-insurers. They may be able to raise extra money by additional taxation, although the ability of local authorities to do so has been curtailed by legislation. See Chapter V of the Local Government Finance Act 1992, which enables the Secretary of State to designate an authority for the “capping” of its Council tax or precept.

6 This point is developed by Jane Stapleton in “Duty of care: peripheral parties and alternative opportunities for deterrence” (1995) 111 L.Q.R. 301.

7 Osman v. United Kingdom, Judgment of 28 October, 1998, (1998) 1 L.G.L.R. 431.

8 M.J. Bowman and S.H. Bailey, “Negligence in the Realms of Public Law—A Positive Obligation to Rescue” [1984] P.L. 277; S.H. Bailey and M.J. Bowman, “The Policy/Operational Dichotomy—A Cuckoo in the Nest” [1986] C.L.J. 430.

9 [1978] A.C. 728.

10 Ibid.

11 [1991] 1 A.C. 398.

12 Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228; Jones v. Department of Employment [1989] Q.B. 1; Yuen Kun Yeu v. Attorney General of Hong Kong [1988] A.C. 175; Hill v. Chief Constable of West Yorkshire [1989] A.C. 53; Curran v. Northern Ireland Co-ownership Housing Association Ltd [1987] A.C. 718.

13 Lavis v. Kent County Council (1992) 90 L.G.R. 416.

14 Osman v. Ferguson [1993] 4 All E.R. 344, per McCowan L.J. at p. 353: “I consider such a dividing line to be utterly artificial and impossible to draw in the present case.”

15 Lonrho v. Tebbit [1992] 4 All E.R. 280, per Dillon L.J. at p. 287; referring to the opinion of Lord Keith in Rowling v. Takaro Properties [1988] A.C. 473, 501.

16 [1988] A.C. 473.

17 At p. 501.

18 [1995] 2 A.C. 633.

19 [1996] A.C. 923.

20 Only Lord Jauncey of Tullichettle was party to both decisions.

21 [1999] 3 W.L.R. 79.

22 [1995] 2 A.C. 633, H.L. See P. Cane, (1996) 112 L.Q.R. 13.

23 I.e. cases falling within the Hedley Byrne principle.

24 Lords Jauncey of Tullichettle, Lane, Ackner and Nolan.

25 [1995] 2 A.C. 633, 771-772.

26 See e.g. his judgment in Lonrho plc v. Tebbitt [1991] 4 All E.R. 973.

27 [1995] 2 A.C. 633, 730-731. The reference to “statutory duty” in (B) and (C) presumably means “statutory function” embracing both powers and duties.

28 A full analysis of the ingredients of the misfeasance tort is given by the Court of Appeal in Three Rivers District Council v. Bank of England (No. 4) (1998) 1 L.G.L.R. 645.

29 [1995] 2 A.C. 633, 732.

30 (1878) 3 App. Cas. 430, 455-456.

31 [1995] 2 A.C. 633, 733. It was not clear whether the Geddis cause of action lay in nuisance (including Rylands v. Fletcher) or negligence.

32 In the case of a direct duty of care owed by the authority, the act of an officer or employee might constitute a breach of that duty. A duty owed by the officer or employee could be a duty owed as a professional, irrespective of whether a direct duty was owed by the authority. (See [1995] 2 A.C. 633, 739-740.) Alternatively, the officer or employee might owe the same duty as the authority, as where powers were delegated (e.g. under the Local Government Act 1972, s. 101).

33 [1995] 2 A.C. 633, 735.

34 [1995] 2 A.C. 633, 736.

35 Ibid., at pp. 737, 738. This view was based on a passage in Lord Keith's opinion in Rowling v. Takaro Properties Ltd. [1988] A.C. 473, 501, cited above, note 17.

36 Ibid., at p. 737.

37 [1995] 2 A.C. 633, 739, applying Caparo Industries plc v. Dickman [1990] 2 A.C. 605, 617-618.

38 [1995] 2 A.C. 633, 739.

39 See note 33 above.

40 See note 36 above.

41 Under which the magnitude of the risk is weighed against the object to be achieved (? social policy) and the cost and practicability of precautions (? finite financial resources) : see W.V.H. Rogers, Winfield and Jolowicz on Tort (15th ed., 1998, pp. 179-183).

42 [1986] C.L.J. 430. See further below, Section III B1.

43 [1970] A.C. 1004, 1031. Here the House of Lords held that the Home Office owed a duty of care in respect of the escape of Borstal trainess from a work camp on Brownsea Island, which led to damage to the plaintiffs’ yacht.

44 [1999] 3 W.L.R. 79, 103-104.

45 [1970] A.C. 1004, 1031; cf. Lord Morris at p. 1037. Indeed, in X v. Bedfordshire itself Lord Browne-Wilkinson stated at one point that if a decision in the exercise of a discretion was not outside the ambit of the discretion, the authority “cannot itself be in breach of any duty of care [our emphasis] owed to the plaintiff”: [1995] A.C. 633, 737.

46 [1978] A.C. 728, 754.

47 [1988] A.C. 473, 501, per Lord Keith (see note 17 above). Their Lordships subsequently noted that the decision of the minister under attack here was “capable of being described as having been of a policy rather than an operational character”; however, the allegation of negligence here was “not … of itself of such a character as to render the case unsuitable for judicial decision”: ibid.

48 [1995] 2 A.C. 633, 748. The Newham case was based solely on a claim that the defendants were vicariously liable for the negligence of their employees.

49 Ibid., at pp. 748-749.

50 Ibid., at p. 748. His Lordship regarded the essence of the case here as being a complaint of the negligent exercise of a statutory discretion, and so presumably allegations about the “failure to take reasonable practical steps” concerned discretionary but non policy-based decisions.

51 Ibid., at pp. 760-761.

52 Cf. Holmes v. Devon County Council (unreported, 24 April, 1998), where P's claim against the council arising out of abuse of him, while in care, by another resident at a home run by the council was struck out by the County Court judge on the basis that the administration of the home was a “discretionary matter”. However, the claim was reinstated by the Court of Appeal on the ground that, after amendment, it was now reasonably arguable that the case fell, if only just, on the operational side. This further illustrates the futility of this exercise.

53 [1995] 2 A.C. 633, 663.

54 Ibid., at p. 749.

55 Ibid.

56 Ibid., at p. 750.

57 Ibid.

58 Cf. Marti v. Smith (unreported, 22 May, 1981, Q.B.D.) where it was argued (unsuccessfully) that it was negligent to place a particular individual in an “open” institution.

59 [1995] 2 A.C. 633, 750.

60 Ibid.

61 These might include the refusal of legal aid (if available) and the refusal of support on a contingent fee basis and procedures for obtaining summary judgment.

62 Recognition of a claim based solely on psychiatric damage would depend on the courts deciding that such damage was actionable in the absence of a specific shocking event: this point was mentioned in the context of the education cases but not reached for decision: ibid., at pp. 766-767, 771.

63 Caparo Industries plc v. Dickman [1990] 2 A.C. 605, 618, per Lord Bridge.

64 Hill v. Chief Constable of West Yorkshire [1989] A.C. 53.

65 Yuen Kun-yeu v. Att.-Gen.of Hong Kong [1988] A.C. 175.

66 [1995] 2 A.C. 633, 751.

67 Cf. Osman v. United Kingdom, note 206 below.

68 Similar arguments were used to deny a duty of care in the education cases as regards the performance of duties under the legislation: [1995] 2 A.C. 633, 761-762. However, it was arguable that a direct duty of care was owed in respect of the provision, by an authority, of a psychology service and the advice given by it ( pp. 762-763), see further, note 205 below.

69 See Stuart-Smith L.J. in Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004, 1044.

70 See further, note 187 below.

71 [1995] 2 A.C. 633, 752.

72 The Court of Appeal has subsequently held that a doctor engaged by an employer to assess medical questionnaires completed by job applicants owes no duty to the applicants: Kapfunde v. Abbey National plc [1999] I.C.R.1, disapproving on this point the decision of Robert M. Owen Q.C. in Baker v. Kaye [1997] I.R.L.R. 219.

73 Smith v. Eric S. Bush [1990] 1 A.C. 831.

74 Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145.

75 [1995] 2 A.C. 633, 753.

76 Ibid.

77 See [1995] 2 A.C. 145, 180, per Lord Goff. cf. Lord Browne-Wilkinson in White v. Jones [1995] 2 A.C. 207, 271-272 in the context of fiduciary relationships.

78 [1995] 2 A.C. 633, 754.

79 The same would presumably apply to the social worker but the argument was deployed in respect of the psychiatrist by the defendant health authority.

80 Evans v. London Hospital Medical College [1981] 1 W.L.R. 184 (immunity applied to communication of result of postmortem to DPP which D had been instructed to make for the purpose of possible criminal proceedings). See further the decision of the House of Lords in Taylor v. Serious Fraud Office [1998] 3 W.L.R. 1040.

81 [1995] 2 A.C. 633, 764.

82 In Dorset, the plaintiffs claimed the cost of providing alternative fee-paying education: [1995] 2 A.C. 633, 764; in Hampshire it was claimed that the failure to treat dyslexia caused psychological damage sufficiently serious to constitute an identifiable mental illness: ibid., at p. 766; in Bromley it was claimed that the plaintiff's personal and intellectual development had been impaired: ibid., at p. 771. Whether these were recoverable in principle was expressly left open. See now Phelps v. Hillingdon London Borough Council [1999] 1 W.L.R. 500 (note 187), where the Court of Appeal has ruled that Hedley Byrne liability does not in fact arise in respect of the failure of an educational psychology service to diagnose dyslexia without a specific assumption of responsibility.

83 [1995] 2 A.C. 633, 763, referring to Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.

84 The claim in Christmas v. Hampshire County Council was subsequently dismissed on the ground that no breach of duty was established: [1998] E.L.R.1. Two cases have been taken to the European Court of Human Rights. The Commission concluded in TP and KM v. UK (App. No. 28945/95), which arose out of M v. Newham London Borough Council, that the UK was in breach of Articles 8 (right to respect for private life), Article 6 (right to a fair hearing as regards the child applicant); and Article 13 (right to an effective remedy as regards the child's mother); it concluded in Z and others v. UK, App. No. 29392/95, which arose out of X v. Bedfordshire, that the UK was in breach of Article 3 ( prohibition of inhuman or degrading treatment) and Article 6 (no separate issues arising under Articles 8 and 13). The cases have been referred to the Court.

85 [1996] A.C. 923. See M.C. Harris, (1997) 113 L.Q.R. 398; J. Convery, (1997) 60 M.L.R. 559.

86 See the speech of Lord Nicholls, [1996] A.C. 923, 929.

87 Judge Crawford Q.C., sitting as a judge of the Queen's Bench Division: Unreported, 27 July, 1992; [1994] l W.L.R. 1124, C.A.

88 [1996] A.C. 923, 931-932, 949.

89 [1978] A.C. 728.

90 [1990] 2 A.C. 605.

91 See Lord Diplock's speech in Home Office v. Dorset Yacht Co. Ltd. [1970] A.C. 1004.

92 To use Lord Nicholls’ expression, [1996] A.C. 923, 938.

93 P.P. Craig, Administrative Law (London 1983), pp. 534-538. See now the 4th ed. at pp. 860-867.

94 [1988] A.C. 473, 501, note 17 above.

95 See note 8 above.

96 See Bowman and Bailey, [1984] P.L. 277, esp. at p. 307. Breach of duty principles are especially apposite to deal with those particular considerations which the policy/operational dichotomy was designed to address. Other crucial considerations, such as the nature of the loss, availability of alternative remedies etc, must continue to be dealt with by traditional principles governing the existence of the duty of care.

97 [1996] A.C. 923.

98 See especially Craig, loc. cit. note 93; C. Lewis, Judicial Remedies in Public Law (London 1992), at pp. 381-388.

99 Barratt v. District of North Vancouver (1980) 114 D.L.R. (3rd) 577; Just v. British Columbia (1989) 64 D.L.R. (4th) 689; Brown v. British Columbia (Minister of Transportation and Highways) (1994) 112 D.L.R. (4th) 1.

100 [1996] A.C. 928, 955-956.

101 Rowling v. Takaro Properties Ltd [1988] A.C. 473, 500-501, per Lord Keith of Kinkel.

102 [1996] A.C. 923, 938.

103 Ibid., at p. 951.

104 Ibid., at pp. 938-939.

105 E.g. in Anns v. Merton London Borough Council [1978] A.C. 728; and, indeed, X v. Bedfordshire.

106 See discussion by Bowman and Bailey, [1984] P.L. 277, 282-285.

107 [1996] A.C. 923, 930.

108 Ibid., at p. 945.

109 As Lord Nicholls observed ibid., at p. 930: “The council did not bring about the dangerous configuration and poor visibility at the road junction. The question is whether it was in breach of common law duty by carelessly failing to remove this source of danger.”

110 Ibid., at p. 944.

111 Ibid., at p. 933.

112 See Bowman and Bailey, [1984] P.L. 277, 301-306.

113 [1996] A.C. 923, 935.

114 Ibid., at p. 946. See also Bowman and Bailey, [1984] P.L. 277, 287.

115 Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465.

116 [1996] A.C. 923, 953.

117 See Mason J. in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, cited by Lord Nicholls at [1996] A.C. 923, 937-938 and by Lord Hoffmann at p. 953; Pyrenees Shire Council v. Day [1997] 1 V.R. 218; B.V. Slutsky (1973) 36 M.L.R. 656, 661; Bowman and Bailey, [1984] P.L. 277, 281-282, 287-289. Note also, however, the views of Stuart-Smith L.J. in Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004, 1027-1028.

118 [1996] A.C. 923, 938.

119 Ibid., at p. 954.

120 Ibid., at p. 957.

121 “In my judgment such an attempt to analyse the authorities is always valuable in focusing the minds of courts on the considerations they need to take into account, but at the end of the day it is the gut feeling of the court … . which is likely to prevail”: per Brooke L.J. in Daly v. Sharples 20 November 1996, C.A., Lexis. Sometimes reference is made instead to judicial “instinct”: see, e.g. Stephenson L.J. in McLoughlin v. O'Brian [1981] 1 Q.B. 599, 614; Watkins L.J. in Lamb v. Camden London Borough Council [1981] 1 Q.B. 625, 647; and Lord Reid, as reported in Paterson, A., The Law Lords (London 1982) at p. 194Google Scholar. Note also the view of Lord Goff that “the judicial function can … be epitomised as an educated reflex to facts … ‘': Smith v. Littlewoods Ltd. [1987] 1 A.C. 241, 280. See generally Bell, J., Policy Arguments in Judicial Decisions (Oxford 1983)Google Scholar.

122 [1996] A.C. 923, 931.

123 [1978] A.C. 728.

124 [1941] A.C. 74.

125 [1996] A.C. 923, 933.

126 [1996] A.C. 923, 952.

127 Ibid., at p. 958.

128 Ibid., at p. 955.

129 See the discussion in Section IV, below.

130 [1996] A.C. 923, 941.

131 Ibid., at p. 935 (emphasis added).

132 Ibid., at p. 953.

133 Ibid., at pp. 952-953.

134 Ibid., at p. 953 (emphasis added).

135 Ibid., at p. 952.

136 See Rogers, W.V.H, Winfield and Jolowicz on Tort (15th ed., 1998), pp. 259–260Google Scholar; Stanton, K.M., The Modern Law of Tort (London 1994), pp. 54–56Google Scholar.

137 [1994] l W.L.R. 1124, 1138.

138 [1996] A.C. 923, 945.

139 One problem with this approach is that it might be thought contrary to principle to impose liability for failure to confer a benefit solely on the grounds that the defendant has resolved to confer the benefit in question, or embarked upon doing so: see Bowman and Bailey, [1984] P.L. 277, 285-286. While this must certainly be true with respect to private sector defendants, it is less clearly the case with public authority defendants exercising statutory powers. In this context, some of the basic arguments against imposing liability for omissions—such as the “Why me?” argument—are plainly inapplicable: see notes 113-114 and accompanying text above. Indeed, “the very fact that the body in question and the functions it exercises have been established … by statute is a pointer in favour of imposing a duty, since it is an indication that the community, through its elected representatives, is entrusting its well-being to that agency in a particular context”: Bowman and Bailey, ibid., at p. 287. Although it is conceded that this pointer is not a particularly strong one, its relevance in this context is that the defendant's decision or attempt to confer the benefit is not the sole reason for imposing liability. Rather, the relevance of this fact is that it could be used to counter certain other arguments against imposing liability, e.g. through its effect in limiting the number of potential claims against the defendant authority and the consequent financial burden and disruption of its activities.

140 See e.g. Bux v. Slough Metals [1973] l W.L.R. 1358. Compliance with the duty under regulations to provide suitable goggles for employees working with molten metal was not sufficient to discharge the common law duty of care, which, in the particular circumstances of the case, extended to taking reasonable steps to secure their use.

141 [1996] A.C. 923, 954.

142 Ibid., at p. 953.

143 Compare his remarks on the position in infliction of loss cases: ibid., at pp. 946-947. See also [1986] C.L.J. 430, 456.

144 See [1984] P.L. 277, 306-307, which suggests that there is little difference in terms of the standards of conduct envisaged by the two texts. On the other hand, there may be a distinction in terms of causation where the decision relates to the conferral of a benefit, because in public law it will generally be “open to a public body to decide not to act in any given instance”: J. Convery (1997) 60 M.L.R. 559, at p. 569. For discussion of this point see the following paragraphs.

145 [1996] A.C. 923, 936. In light of Convery's argument it may be that Lord Nicholls too readily accepted this particular point, though it was only advanced as one of a number of factors pointing towards a finding of liability.

146 [1996] A.C. 923, 936.

147 Ibid., at p. 933.

148 See [1986] C.L.J. 430, at p. 447.

149 Ibid. See the criticism of this procedure expressed by Lord Wilberforce in Allen v. Gulf Oil Refining Ltd. [1981] A.C. 1001 at p. 1010, quoted with approval by Lord Bridge in Lonrho v. Fayed [1992] 1 A.C. 448, at p. 470, and by Hirst L.J. in Three Rivers District Council v. Bank of England (No. 4) (1998) 1 L.G.L.R. 645, 718-720.

150 [1986] C.L.J. 430 at p. 440.

151 Bolitho v. City and Hackney Health Authority [1998] A.C. 232.

152 See de Smith, , Woolf, and Jowell, , Judicial Review of Administrative Action (5th ed., London 1995), at p. 248Google Scholar.

153 See, e.g. Todd, S., The Law of Torts in New Zealand (2nd ed., 1997) at pp. 342–362Google Scholar.

154 [1996] A.C. 923, 939-941.

155 Jones v. Wright [1992] 1 A.C. 310; Murphy v. Brentwood District Council [1991] 1 A.C. 398.

156 Stovin v. Wise [1996] A.C. 923; Hill v. Chief Constable of South Yorkshire Police [1989] A.C. 53.

157 Yuen Kun-yeu v. A.G. of Hong Kong [1988] A.C. 175; Curran v. Northern Ireland Co-Ownership Housing Association [1987] A.C. 718.

158 Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424.

159 Jones v. Department of Employment [1989] Q.B. 1.

160 Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210.

161 P. Perl (Exporters) Ltd. v. Camden London Borough Council [1984] Q.B. 342.

162 Rowling v. Takaro Properties [1988] A.C. 473; Hill v. Chief Constable of South Yorkshire Police [1989] A.C. 53; X v. Bedfordshire.

163 [1996] A.C. 923, 941.

164 Ibid. But see note 168 below.

165 I.e. in respect of a failure to take reasonable care to keep the highway safe: see the Highways Act 1980, s. 58. But note the views of Lord Hoffmann on this point: [1996] A.C. 923, 952, 957-958.

166 Both to those who came into his property, under the Occupier's Liability Acts 1957 and 1984, and to neighbours at common law, under the principle of Goldman v. Hargrave [1967] l A.C. 645.

167 [1996] A.C. 923, 929, 936.

168 Ibid., at pp. 956-957.

169 Ibid., at p. 957. See note 151 above.

170 See especially Kennedy L.J. in the Court of Appeal: [1994] 1 W.L.R. 1124, 1131 and Lord Hoffmann, [1996] A.C. 923, 926-927.

171 H v. Norfolk County Council [1997] 1 F.L.R. 384, refusing leave to appeal (no liability in respect of abuse by a foster parent of a child in the council's care); cf. Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79 (possible liability in respect of the authority's decisions as to the upbringing of a child in care) (see below, Section V).

172 Lam v. Brennan and Torbay Borough Council [1997] P.I.Q.R. P488.

173 Ibid.

174 Tesco Stores Ltd. v. Wards Construction (Investment) Ltd. (1995) 76 B.L.R. 94 (no duty of care in exercising building control powers to avoid causing loss of or damage to property).

175 R. v. Ealing London Borough Council, ex p. Parkinson (1995) 29 H.L.R. 179.

176 Blake v. London Borough of Barking and Dagenham (1996) 30 H.L.R. 963; Payne v. Barnet London Borough Council (1997) 30 H.L.R. 295.

177 Hussain v. Lancaster City Council [1999] 2 W.L.R. 1142, C.A. (pet. dis. [1999] 1 W.L.R. 1359, H.L.).

178 Daly v. Sharples (sued as the Chief Constable of the Merseyside Police) (unreported, 20 November 1996) (no duty of care owed in respect of the conduct of an identification parade); Kinsella v. Chief Constable of Nottinghamshire, The Times, 25 August 1999 (no duty of care owed in respect of alleged negligence causing damage to claimant's property during a search; it is submitted that this takes the immunity recognised in Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53 into new territory and was wrongly decided.)

179 Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004; but cf. Kent v. Griffiths, The Times, 10 February 2000 (note 188).

180 Skinner v. Secretary of State for Transport, The Times, 3 January 1995; OLL Ltd. v. Secretary of State for Transport [1997] 3 All E.R. 897.

181 Reeman v. Department of Transport [1997] 2 Lloyd's Rep. 648.

182 Harris v. Evans [1998] 1 W.L.R. 1285.

183 Palmer v. Tees Health Authority, The Times, 6 July 1999. Or to prevent the plaintiff patient from causing harm: Clunis v. Camden & Islington Health Authority [1998] Q.B. 978.

184 Elguzouli-Daf v. Commissioners of Police of the Metropolis [1995] Q.B. 335; cf. W v. Home Office, The Times, 14 March 1997 (no duty of care owed by immigration officer in deciding whether immigrant should be detained).

185 E.g. Skinner, Lam, the fire service cases, Hussain, Palmer.

186 E.g. Barrett, Lam, Harris, Reeman, Kinsella. It is difficult to see why the misdirection by the coastguard of persons outside the coastguard service seeking to rescue people in danger at sea does not involve the infliction of a loss: contra, OLL Ltd. v. Secretary of State for the Home Department [1997] 3 All E.R. 897.

187 E.g. cases falling within the scope of the Hedley Byrne principle: the causes of action not struck out in X v. Bedfordshire; Welton v. North Cornwall District Council [1997] 1 W.L.R. 570 (negligent requirement of unnecessary work by environmental health officer); Lambert v. West Devon District Council [1997] J.P.L. 735. But see Phelps v. Hillingdon London Borough Council [1999] 1 W.L.R. 500, where the Court of Appeal held that Hedley Byrne liability would only arise where a professional officer voluntarily assumed personal responsibility, otherwise the policy grounds against holding the authority directly liable would be subverted.

188 The liability of the fire service in respect of actions that increase the risk of fire: Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004; the liability of the ambulance service even for an omission once it had accepted a 999 call in respect of a named individual at a specified address: Kent v. Griffiths, The Times, 10 February 2000: the possible liability of a local authority where a sex offender was placed with foster parents contrary to their expressed wishes and without informing them of his background: W v. Essex County Council [1999] Fam. 90; the possible liability of a local authority to a child in care in respect of decisions as to its upbringing: Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79.

189 Tesco Stores (note 174): no duty of care in respect of loss or damage to property where statute was designed to protect the health, safety and welfare of persons; Payne (note 176): no wider obligations imposed through the tort of negligence than through statute (which required the disclosure of structural defects known to the council); Reeman (note 181): no duty of care in respect of issue of certificates of seaworthiness of fishing vessel leading to economic loss to plaintiffs; statutory framework designed to promote safety at sea.

190 Tesco Stores (note 174): even if the purpose of the statute had extended to property damage, it would still not have been fair, just and reasonable to impose a duty of care; Hussain v. Lancaster City Council (note 177): not fair, just and reasonable to hold council liable for failing to take reasonable steps to prevent racial harassment by council tenants and others using the highway by use of statutory powers; Palmer v. Tees Health Authority, The Times, 6 July 1999: not fair, just and reasonable to impose duty of care on health authority in respect of alleged failure to diagnose that an outpatient posed a serious risk to the public; W v. Home Office, The Times, 14 March 1997: not fair or reasonable to impose liability on immigration officer performing his public duty; R v. Ealing London Borough Council, ex p. Parkinson (1995) 29 H.L.R. 179; Reeman v. Department of Transport [1997] 2 Lloyd's Rep. 648; H v. Norfolk County Council [1997] 1 F.L.R. 384; Skinner v. Secretary of State for Transport, The Times, 3 January 1995; Harris v. Evans [1998] 1 W.L.R. 1285. cf. the non-acceptance of the public policy arguments in Welton (note 187); Capital & Counties plc v. Hampshire County Council (note 188) (as regards liability for increasing the risk of fire); Perrett v. Collins [1998] 2 Lloyd's Rep. 255 (as regards liability of certification officer for personal injuries caused to passenger in defective light aircraft) (see note 241 below); Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79, below, Section V.

191 (1), (2) (decision falls within ambit of discretion); R v. Ealing London Borough Council, ex p. Parkinson (1995) 29 H.L.R. 179 (if wrong on that, not fair, just and reasonable to impose duty of care); W v. Home Office, The Times, 14 March 1997. (4) (criteria in Stovin v. Wise not satisfied): Hussain v. Lancaster City Council (note 177); Clunis v. Camden & Islington Health Authority [1998] Q.B. 978: “We find it difficult to suppose that Parliament intended to create such an extensive and wide-ranging liability for breaches of responsibility under section 117 [of the Mental Health Act 1983 (duty of health authority and social services authority to provide, in co-operation with voluntary agencies, after care services to person who cease to be detained under the Act)] which would of its nature apply alike to those engaged as professionals as well as those in voluntary services in many disciplines” (per Beldam L.J. at p. 992). (5) (no sufficiently proximate relationship): Palmer v. Tees Health Authority, The Times, 6 July 1999 (as between health authority and member of the public living in the area injured by outpatient; child murdered, child's mother suffered psychiatric injury); Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004 (as between fire authority and owner of premises on fire attended by fire brigade); Reeman v. Department of Transport [1997] 2 Lloyd's Rep. 179 (as between DoT as issuer of certificate of seaworthiness of fishing vessel and subsequent purchaser of vessel who suffered financial disaster when certificate was withdrawn). (7) (no breach of duty) Phelps v. Hillingdon London Borough Council [1999] 1 W.L.R. 500; Swinney v. Chief Constable of Northumbria Police (No 2), The Times, 25 May 1999. (8) (no causal link) Skinner v. Secretary of State for Transport, The Times, 3 January 1995 (P on the facts not likely to have been found sooner if coastguard had given alert earlier). (9) (loss outside scope of tort of negligence): Phelps v. Hillingdon London Borough Council [1999] 1 W.L.R. 500 (dyslexia and failure to mitigate dyslexia not an injury, but might give rise to claim for economic loss).

192 Targett v. Torfaen District Council [1992] 3 All E.R. 27; Smith v. Eric S. Bush; Harris v. Wyre Forest District Council [1990] 1 A.C. 831, H.L.

193 Lord Browne-Wilkinson in X v. Bedfordshire [1995] 2 A.C. 633, 761-762, 764 (notes 68, 82 above); but see now the Phelps case, note 187.

194 Carmarthenshire County Council v. Lewis [1955] A.C. 549; Surtees v. Kingston-upon-Thames Royal Borough Council [1991] 2 F.L.R. 559.

195 Home Office v. Dorset Yacht Co. Ltd. [1970] A.C. 1004; Porterfield v. Home Office, The Independent, 9 March 1988; Knight v. Home Office [1990] 3 All E.R. 237; Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 Q.B. 283; Reeves v. Commissioner of Police of the Metroplis [1999] 3 W.L.R. 363.

196 See e.g. the morass of case law on the scope of the application for judicial review and the failure of the courts to develop a clear test for identifying a public function: de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed., 1995), Chap. 3.

197 [1999] 3 W.L.R. 79.

198 A claim for breach of statutory duty had originally been made but was rejected by Judge Brandt and not pursued in the Court of Appeal: see Lord Slynn, ibid., at pp. 87, 88.

199 In X v. Bedfordshire, by contrast, several of the claims were struck out, while in Stovin the plaintiff's claim was ultimately rejected on appeal.

200 Lord Hutton expressly described certain of his conclusions on the law in this area as “provisional”: [1993] 3 W.L.R. 79, 108.

201 Ibid., at p. 196.

202 Both also agreed that the issues regarding breach of duty and causation required a full exploration of the facts and were not appropriate for striking out: see Lord Slynn, ibid., at pp. 213-214 and Lord Hutton at p. 229.

203 Ibid., at pp. 197-200.

204 [1995] 2 A.C. 633, 673.

205 The assumption was that the psychology service would be a service open to the public along the lines of a hospital.

206 Judgment of 28 October 1998, (1998) 1 L.G.L.R. 431.

207 [1989] A.C. 53.

208 These views essentially reflect the arguments raised by the UK Government in Osman but rejected by the Court: see paras. 133-140 of the judgment.

209 For a possible example, see Kinsella v. Chief Constable of Nottinghamshire, The Times, 25 August 1999.

210 [1999] 3 W.L.R. 79, 82-83.

211 See ibid., at pp. 90, 91, 99.

212 [1996] A.C. 923, 928.

213 [1999] 3 W.L.R. 79, 97.

214 This point is made repeatedly in the passage in his speech headed “The negligent exercise of a statutory discretion”: ibid., at pp. 102-111.

215 See especially, p. 108.

216 See pp. 109-111.

217 See pp. 106-108. He laid particular emphasis on the point made in Rowling that neither the policy nor the operational aspects of the test could be regarded as conclusive indicators of the existence/non-existence of a duty of care.

218 At p. 105.

219 See the discussion of that case in Section III B 1 above.

220 At p. 105.

221 Bowman and Bailey, [1984] P.L. 277, 306-307.

222 Ironically, this point was actually recognised by both Lords Slynn and Hutton elsewhere in their speeches: see Section V D below. The only situation in which it might loosely be said that the courts were substituting their own view for that of the defendant is where they conclude that there was only one decision which could reasonably have been reached. Such decisions are certain to be rare, however, and are in any event occasionally encountered in proceedings for judicial review: for a recent example, see R v. Lord Saville, ex p. A (1999) 149 N.L.J. 1201.

223 See Lord Slynn [1999] 3 W.L.R. 79 at p. 97 and Lord Hutton at p. 111.

224 Ibid., at pp. 102-103.

225 [1945] K.B. 584, 595.

226 (1985) 157 C.L.R. 424, 459.

227 For discussion of this point, see Section III C 2 above.

228 See Lord Slynn, [1999] 3 W.L.R. 79, 94. Lord Hutton, at p. 114, did not agree that the instant case constituted a novel category of negligence claim.

229 These points were made in the form of simple assertions: see Lords Slynn at pp. 93-94 and Hutton at pp. 113-114.

230 This had been Lord Browne-Wilkinson's formulation in X v. Bedfordshire: see [1995] 2 A.C. 633, 649.

231 Possibly because they had been viewed unsympathetically by the European Court of Human Rights in the Osman case: see in particular paragraphs 141-154 of the Court's judgment.

232 Lord Slynn cited with approval the dissenting judgment of Lord Bingham M.R. in the Court of Appeal in the X v. Bedfordshire case.

233 On this point, both their Lordships cited with approval the comments of Evans L.J. in the Court of Appeal in the instant case.

234 See Lords Slynn at pp. 94-95, 98-99 and Hutton at pp. 111-113.

235 That is not to deny, of course, that the plaintiff would face an exceptionally difficult task at the trial. Barrett was followed by the Court of Appeal in another striking-out case: Gower v. London Borough of Bromley, The Times, 28 October 1999.

236 See Lords Slynn at pp. 98-99 and Hutton at pp. 115-116.

237 Lord Slynn expressly noted that the defendants would have the benefit of the principle articulated in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 (ed.).

238 See e.g. Murphy v. Brentwood District Council [1991] 1 A.C. 398; the discussion by the Court of Appeal of the different balance of policy factors according to whether loss is personal injury, property damage or economic loss in Perrett v. Collins [1998] 2 Lloyd's Rep. 255.

239 See e.g. the discussion in Stovin v. Wise [1996] A.C. 923; Capital & Counties plc v. Hampshire County Council [1997] Q.B. 1004. This is not to say that the line between liability and non-liability in the case of failure to confer a benefit is satisfactorily clarified: compare the Capital & Counties case with Kent v. Griffiths, The Times, 10 February 2000 (note 188).

240 Above, Section II.

241 As noted by Buxton L.J. in Perrett v. Collins [1998] 2 Lloyd's Rep. 255, 277.

242 But note the views expressed by Lords Slynn and Hutton in Barrett discussed in Section V B.

243 See e.g. Swinney v. Chief Constable of the Northumbria Police [1997] Q.B. 464, 484 (Hirst L.J.), 486 (Peter Gibson L.J.) (arguable that there was a special relationship between police and informant to keep information supplied secure so as to maintain secrecy of informant's identity; necessary to consider all public policy arguments in the round); ibid. (No. 2), The Times, 25 May 1999 (trial judge found that a duty of care was owed but there was no breach); Leach v. Chief Constable of Gloucestershire Constabulary [1999] 1 W.L.R. 1421 (alleged failure to provide counselling for volunteer who sat in as “appropriate adult” on police interviews with Frederick West).

244 [1999] 3 W.L.R. 79.