A restless period for civil liability in the public sector

With numerous important judgements passed recently, we have summarised recent cases with links provided to the full judgments and our legal updates…

In recent months and weeks the law reports have been littered with important and some arguably unexpected judgments. We have seen impactful cases on duty of care and human rights, instructive judgments on the liability of occupiers and salutary decisions on data protection and vicarious liability. We have summarised this case law below with links provided to the full judgments and our legal updates where appropriate.

Contents

Negligence/duty of care

CN & GN v Poole BC [2017] EWCA Civ 2185

CN, GN and their mother were harassed by neighbours. The children’s claims were that social services were negligent in failing to remove them from the family home.

The council owed no duty of care to protect the claimants from harm caused by third parties. The decision in D v East Berkshire could not stand further to the SC decision in Michael v Chief Constable of South Wales Police - human rights claims and negligence claims are fundamentally different. The claimants are applying to the SC for permission to appeal.

Local authorities – no duty of care to children not in care

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

C was an innocent bystander who was injured as the police sought to arrest a suspected criminal. It was accepted that the arrest was carried out negligently.

The correct approach to considering whether a duty of care arises involves an analysis of established principles. The present case was not novel. The arrest was a positive negligent act and injury to C was foreseeable. Police immunity under Hill v West Yorkshire Police only arises in relation to the protection of the public from harm through the performance by the police of their function of the investigation of crime.

Hill immunity misunderstood? Robinson v West Yorkshire Police - Supreme Court

Razumas v MoJ [2018] EWHC 215

C had received negligent medical care whilst in prison causing him to have his left leg amputated above the knee.

MoJ owed C a direct duty of care in relation to matters arising out of custody. The direct duty did not include a responsibility to actively reinforce the role of healthcare operators. The system of access to healthcare was not deficient; there had been negligence on the part of healthcare providers but no separate default by MoJ. A non-delegable duty did not arise because MoJ did not owe a duty to protect against negligent medical treatment.

Read the Razumas v MoJ judgment

Siddiqui v University of Oxford [2018] EWHC 184

C sued the university alleging that the standard of teaching was negligent such that he underachieved both academically and professionally.

The teaching was not negligent and the claimant could not prove causation in any event. The judge reiterated the difficulties for a claimant in a claim for allegedly negligent education where establishing a causative link between the quality of teaching and any alleged “injury” is fraught with difficulty.

Read the Siddiqui v University of Oxford judgement

Human rights

Commissioner of Police of the Metropolis v DSD & Anor. [2018] UKSC 11

The claimants were victims of the serial rapist Worboys. The claim for damages was based on police investigative failings which they alleged were in breach of their Article 3 rights.

The state is obliged under Article 3 to conduct an effective investigation into crimes involving serious violence, whether by state agents or individual criminals. Breach of that investigative duty gives to a right to compensation. Only serious and egregious failings/errors will amount to a breach. Compensation was payable even though the claimant had received a civil damages and a CICA award.

Investigative police failings remain open to attack

Razumas v MoJ [2018] EWHC 215

C alleged that successive failures to provide requisite medical assistance for the treatment of his cancer amounted to degrading treatment within the meaning of Article 3.

The claim was between four and six years past the 12 month limitation period and was therefore time barred. No good reason for the delay. Further, the acts complained of were healthcare failures and did not relate to C’s custody. Finally, the acts complained of did reach the minimum severity threshold so as to trigger art.3.

Read the Razumas v MoJ judgment

Neville & Ors. v Commissioner of Police of the Metropolis [2018] EWHC 20

The deceased had mental health problems. He died after an incident when he had been restrained by officers. The estate and the family brought a claim for breach of Article 2.

There was no unreasonable force and the police officers had summoned medical assistance at the first opportunity. Accordingly there was no breach of the Article 2 operational duty. There was also no breach of the general framework duty since the police had a system in place for dealing with such incidents and the officers were adequately trained.

Read the Neville & Ors. v Commissioner of Police of the Metropolis judgment

Ali & Anor. v Channel 5 Broadcast Ltd [2018] EWHC 298

Misuse of private information claim brought by couple who were filmed as part of “Can’t Pay? We’ll Take It Away”.

Whilst the programme contributed to a debate of public interest, the use of the claimants’ private information went beyond what was justified and therefore infringed their rights to privacy under Article 8.

Read the Ali & Anor. v Channel 5 Broadcast Ltd judgment

Highways and occupiers' liability

Singh v The City of Cardiff Council [2017] EWHC 1499

C alleged he tripped on a defective footpath when walking home in the early hours. He slipped into an adjacent brook where he was found 8 hours later with serious injuries.

The footpath was a maintainable highway but the alleged defects did not amount to a breach of S.41 Highways Act 1980. In any event, the claimant could not prove that the alleged defects were the cause of his fall. A claim under the OLA 1957 relating to the adjacent land also failed. Any risk was obvious and was willingly accepted by C. Had C succeeded, contributory negligence would have been 70%. The risk was obvious, C chose to leave the footpath and he had been drinking.

Read the Singh v The City of Cardiff Council judgment

Cook v Swansea City Council [2017] EWCA Civ 2142

C aged 78 slipped and fell on an icy car park for which the council operated a reactive system.

The risk of ice in cold weather was an obvious danger and people could be reasonably expected to watch out for it. There had been no previous reports of dangerous icy conditions at the car park or any previous accidents due to ice. To require the council to grit whenever ice was likely was excessive and would have a detrimental effect.

Read the Cook v Swansea City Council judgment

Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027

C was taken to hospital in a confused state. Shortly after arriving C walked away. He passed through a number of doors and accessed a flat roof from which he either fell or jumped.

The hospital was negligent and in breach of the OLA 1957 on the basis that the doors providing access to the staircase and roof were unsecured such that the premises were not reasonably safe for confused and vulnerable patients.

Personal injury, Negligence, Occupiers’ Liability Act 1957

Data protection and privacy

TLT & Others v (1) Secretary of State for the Home Dept. & (2) the Home Office [2016] EWHC 2217

Assessment of damages in a data breach case where the claimants have suffered distress.

In assessing damages for distress the court should take into account awards made for psychiatric or psychological injury in personal injury cases to ensure that any award is not out of kilter with them. Taking into account the claimants’ loss of control over their information and the impact of the data breach, damages were awarded to each of the Cs ranging from £2,500 to £12,500. Note, matter proceeding to appeal in April but not in relation to the damages awards.

Read the TLT & Others v (1) Secretary of State for the Home Dept. & (2) the Home Office judgment

Various Claimants v WM Morrisons Supermarket PLC [2017] EWHC 3113

Class action under DPA 1998 involving over 5,000 employees relating to an intentional and criminal data breach perpetrated by a disgruntled employee of the defendant.

The defendant company was vicariously liable for the actions of the employee whose disclosures amounted to misuse of personal information and a breach of the DPA 1998. Although the employee’s actions were intended to harm the defendant employer, his motive was irrelevant. D’s appeal will be heard by Court of Appeal in late June.

Ali & Anor. v Channel 5 Broadcast Ltd [2018] EWHC 298

Misuse of private information claim brought by couple who were filmed as part of “Can’t Pay? We’ll Take It Away”.

Whilst the programme contributed to a debate of public interest, the use of the claimants’ private information went beyond what was justified and therefore infringed their rights to privacy under Article 8.

Read the Ali & Anor. v Channel 5 Broadcast Ltd judgment

Vicarious liability

Armes v Nottinghamshire CC [2017] UKSC 60

C was abused by foster carers whilst placed with them as a child in care.

SC held that all five criteria laid down in the decisive SC judgment of Christian Brothers [2012] UKSC 56 were satisfied. In particular, the council’s approval and supervision of the foster carers gave it a significant degree of control.

Vicarious liability extends to local authority foster carers/

Various Claimants v Barclays Bank [2017] EWHC 1929

The claimants sued the bank as their employer in relation to sexual assaults committed by an independent doctor to whom the bank sent prospective employees for pre-employment medical assessments.

Relationship between bank and doctor - medical examinations were for the benefit of the bank and were a part of its business activities. The bank had further created a risk of sexual assault by engaging the doctor and had provided detailed instructions to him thereby exercising control. Connection between assaults and the relationship – this connection was established because the assaults were committed during the course of medical examinations which the doctor had been instructed to carry out. D’s appeal will be heard by Court of Appeal in late June.

Various Claimants v WM Morrisons Supermarket PLC [2017] EWHC 3113

Class action under DPA 1998 involving over 5,000 employees relating to an intentional and criminal data breach perpetrated by a disgruntled employee of the defendant.

D was vicariously liable for the actions of the employee. While the disclosure had taken place outside working hours and from his personal computer, adopting the approach in Mohamud v Morrison [2016] UKSC 11, there was a sufficient connection between the position in which he had been employed and his wrongful conduct to make it right for D to be liable. D’s appeal will be heard by Court of Appeal in late June.

Read the Various Claimants v WM Morrisons Supermarket PLC judgment

Bellman v Northampton Recruitment [2016] EWHC 3104

C was assaulted by a director of the defendant company at a drinks event after the main Xmas party.

D was not vicariously liable. There was insufficient connection between the assault and the position in which the director was employed. The drinks event at the hotel was not part of the organised work event. C’s appeal will be heard by Court of Appeal in April.

Employers' liability

Stewart v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 2091

C midwife injured when lifting an oxygen box.

The trial judge’s finding that there was no real risk of injury and therefore no need for a detailed risk assessment were upheld. There was no evidence that handling of the box had given rise to any difficulties or complaints over many years and, per HSE Guidance, the weight of the box was less than the limit likely to create a risk of injury.

Read the Stewart v Lewisham and Greenwich NHS Trust judgment

Casson v Spotmix & Ors. [2017] EWCA Civ 1994

C was injured when cleaning equipment with moving parts. He appealed against a reduction to his damages of 10% for contributory negligence.

The finding of contributory negligence was overturned. It was reiterated that momentary inadvertence was not enough. Further, C in this case was acting in exactly the same way as all other employees and it could not therefore be said that his actions fell below that of the reasonable man.

Read the Casson v Spotmix & Ors. judgment

Fraud and fundamental dishonesty

London Organising Committee of the Olympic And Paralympic Games v Sinfield [2018] EWHC 51 (QB) (22 January 2018)

C injured whilst working as a volunteer. Liability admitted but D sought strike out of the claim on basis the special damages claim was fundamentally dishonest.

C included in his claim the costs of employing a gardener. He also submitted invoices to support the claim. He contended that prior to the accident he had done the gardening himself. In fact, he had always employed a gardener and had fabricated the invoices. The claim was fundamentally dishonest and therefore the whole claim (to include the valid parts) was struck out under S.57 Criminal Courts and Justice Act. Whilst dishonest is a subjective state of mind, the law applies an objective test with ordinary standards.

Read the London Organising Committee of the Olympic And Paralympic Games v Sinfield judgment

Doncaster Council v Grix [2017] QBD (unreported)

The council pursued contempt proceedings against C who made a fraudulent highway claim.

C alleged he had tripped on the highway when in fact he was injured playing football. He discontinued his claim but the council pursued contempt of court proceedings. The claimant was sent to prison for four months and ordered to pay all the council’s costs.

Fraudster who sued council for bogus highway accident found guilty by High Court

Defamation

Lachaux v Independent Print Ltd [2017] EWCA Civ 1334

C sued in respect of publications suggesting he had been violent towards his wife. Preliminary issue relating to the test for serious harm under section 1 of the Defamation Act 2013.

The cause of action arises at the point of publication and it is at this point that the threshold has to be met. The presumption of damage flowing from a libel continues to apply although there was a raised threshold of harm. The words “likely to cause” in S.1 do not require a claimant to prove damage or likely damage but rather connote a “tendency” to cause serious harm. It is proper to draw an inference of serious reputational harm where the meaning of the words complained of is seriously defamatory. In cases where serious harm can be inferred it will not usually be appropriate for there to be a preliminary hearing on whether serious harm actually occurred.

Read the Lachaux v Independent Print Ltd judgment

Dhir v Saddler [2017] EWHC 3155

C sued D in respect of words spoken to 90 people at a church congregation indicating he had threatened to kill someone.

Rare case of a slander claim proceeding to trial. The words were defamatory and satisfied the serious harm threshold in the Defamation Act 2013. C awarded £35,000.

Read the Dhir v Saddler judgment

Stocker v Stocker [2018] EWCA Civ 170

In the course of Facebook messages D described an incident when she said that C (ex-husband) “tried to strangle her”. The message was posted on a public part of the Facebook page.

Court of Appeal upheld all the trial judge’s findings. D was responsible for the publications. The ordinary reader would understand the words as meaning he intended to kill her. That meaning was defamatory. The libel was not trivial but there were a limited number of recipients. The claimant did not seek damages but they would have been assessed at £5,000.

Read the Stocker v Stocker judgment

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