Lloyd's Maritime and Commercial Law Quarterly
THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES: A TRADITIONAL SOLUTION
Perrett v. Collins
For some years now public authorities have led something of a charmed life when defending negligence actions.1 The courts have devised an impressively extensive array of hurdles for plaintiffs to cross.2 The stance of the courts may well, in a variety of situations, be justified on policy grounds. Perhaps the investors in a case like Davis v. Radcliffe
3 should bear their own losses. Equally, at least where the perpetrator of a crime remains unidentified, the police should not be responsible, in negligence, for failing to identify and apprehend him.4 Nevertheless, there are occasions when one is tempted to think that matters may have gone somewhat too far and that in the desire to protect public bodies fundamental considerations have been lost sight of. Take the Scottish case of Forbes v. Dundee D.C.,5 where the pursuer suffered physical injury when she fell down a stairway leading to a supermarket. She alleged that the accident was caused by the fact that the local authority had exercised its statutory powers of inspection carelessly. The Lord Ordinary denied that a duty of care was owed. Such a denial results in a negating of the two core aims of the law of negligence: compensation and deterrence.
Against that backdrop, the recent Court of Appeal decision in Perrett v. Collins
6 may suggest that things are swinging back, at least to some extent,7 in favour of plaintiffs. There the plaintiff suffered personal injuries when the aircraft in which he was flying crashed. There were a number of defendants to the action, including the Popular Flying Association (PFA). It is the involvement of the latter that gives rise to interest since the PFA performs delegated statutory functions on behalf of the Civil Aviation Authority (CAA). Under the framework of the Civil Aviation Act 1992 the plane could not have taken off without a certificate of airworthiness issued by a PFA inspector. The plaintiff alleged that had the PFA exercised reasonable care in carrying out their inspection functions they would have refused to issue a certificate of airworthiness. The PFA is not a public authority but a limited company. Nevertheless, since the PFA exercised statutory powers on behalf of the CAA, the decision is important from the perspective of public authority liability. The involvement of the PFA also serves to remind us that defining the term public authority is not free from difficulty.8
In holding for the plaintiff, the crucial consideration for the court was the nature of the harm suffered. It is more important to protect health than wealth.9 Despite this, the PFA
1. See D. Brodie, “Public Authorities and the Duty of Care” [1996] J.R. 127.
2. For instance, X v. Bedfordshire C.C. [1995] 2 A.C. 633 stipulates that where a public authority is exercising statutory powers then, before any question of duty of care can be addressed, the plaintiff must show that the authority has acted outside the scope of any discretion conferred by parliament.
3. [1990] 2 All E.R. 536.
4. Hill v. Chief Constable [1989] A.C. 53. On which see D. Brodie “Pursuing the Police” [1995] J.R. 292.
5. 1997 S.L.T. 1330.
7. See also W v. Essex C.C. [1998] 3 All E.R. 111. Where the loss suffered is purely economic the odds remain stacked in favour of the defendant: Harris v. Evans [1998] 1 W.L.R. 1285 (C.A.).
8. C. Harlow, “‘Public’ and ‘Private’ Law: Definition Without Distinction” (1980) 43 M.L.R. 241, 253–254.
9. Tony Weir, A Casebook on Tort, 8th edn (1996), 6–8.
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