Public Sector Legal Update

Public Sector Legal Update ALARM SOUTH EAST AGM 22 MARCH 2006

David Maggs Nikki Prater Highways Claims

There has previously been a lot of activity on highways claims. Goodes –v- East Sussex confirmed that a Highway Authority's duty to maintain the highway is limited to the fabric of the highway and does not extend, for example, to snow and ice on the highway. The Government responded by introducing a new sub-section to the Highways Act placing a duty on the Highway Authority to ensure, so far as reasonably practicable, that safe passage along a highway was not endangered by snow or ice.

In 2004 in Gorringe v Calderdale MBC the House of Lords held that there was no private law cause of action under either Section 41 of the Highways Act or Section 39 of the Road Traffic Act with regard to the painting of markings or the signage on the highway.

In Sandhar v Department of Transport, Environment and the Regions the Court of Appeal confirmed that the Highway Authority had not assumed responsibility for the salting of roads.

Jenevar Anglin v London Borough of Lambeth confirmed that a proud manhole cover with a sloping concrete infill was not dangerous.

Social Services Claims

The old style group actions based upon sexual abuse in a residential care setting have worked their way through the system. The new claims against social services often involve allegations which are in effect a claim for professional negligence. The Catholic Church and the Bryn Alyn litigation continue to throw up challenges for the local authority sector. In C –v- D the Judge found that the recognised psychiatric condition contended for on behalf of the Claimant was not present but he still awarded general damages on the basis of the Claimant's "mental abnormality". Despite the absence of physical contact (the first Defendant looked at the naked Claimant and made a video involving the Claimant in the changing room showers) liability was established using the old case of Wilkinson –v- Downton which involved a liability following a practical joke. The heads of special damage were increased to include the loss of parental handouts provided to the Claimant because of the damage to his relationship with his parents, which resulted from the abuse.

In KR –v- RSA the insurers of Bryn Alyn looked to take advantage of exclusion clauses which meant their policy was not on cover for the deliberate acts or omissions of the company. The findings in the original trial were against them so that on the facts the court found that the exclusion clauses were not applicable to the circumstances of the abuse. The lesson for local authorities is to check your policy wording to ensure that your insurers cannot avoid a liability by means of any exclusion clauses where deliberate abuse is perpetrated by an employee.

A –v- Archbishop of Birmingham, where substantial loss of earnings were awarded and total damages exceeded £500,000, demonstrates how very expensive abuse claims can become if loss of earnings can be established. However the average educational attainment for children in care is very poor. With arguments and statistics properly marshalled there is no reason why an abuse claim involving a local authority should reach the level of damages in A –v- Archbishop of Birmingham.

JD –v- East Berkshire is a victory for local authorities in the House of Lords which we may all come to regret. Whilst it establishes that there is no claim by parents where child protection is operated negligently by the local authority, the finding is confined to events which pre-date the coming into force of the Human Rights Act. The House of Lords left open the position as to whether there could be a claim by the parents under the Human Rights Act for events which post-date the implementation of the Act. The case is probably the final nail in the coffin for any argument that a local authority do not owe a duty of care to a child in the community.

AD –v- Bury Metropolitan Borough Council is an example of the Court of Appeal following the House of Lords' lead in JD –v- East Berkshire. Whilst all cases will be fact specific it helpfully highlights the need for the Claimant to show a psychiatric injury as a result of negligence in implementation of the child protection procedures and this will be very difficult where you are dealing with very young children.

Education Cases

Defendants have had considerable success in defending education cases. This comes from treating them as claims for professional negligence by educational psychologists or teachers. One of the effects of this has been to make the costs to damages ratio unattractive to the Legal Services Commission, solicitors operating with conditional fee agreements and insurers who provide after the event insurance. In consequence the number of claims have been small. Where claims have been brought they have often been successfully defended. Even where they have been lost, such as in Devon –v- Stuart Clarke, the Defendants have been successful, for example, by preventing the Claimant being awarded all of their costs because many of the allegations did not succeed.

The very recent case of Skipper –v- Calderdale Metropolitan Borough Council is perhaps an example of what can go wrong where there is not sufficient co-ordination between Defendants as to the approach to take to these claims. The Defendants unwisely sought to strike out the claim which resulted in the Court of Appeal finding that damages could be awarded for frustration and loss of self-esteem and failure to ameliorate dyslexia even when there was no recognised psychiatric injury. Whilst that finding is broadly in line with the earlier decision of Robinson –v- St Helens any decision where damages are awarded for frustration and loss of self-esteem as opposed to a recognised psychiatric injury is bad news for Defendants. It is always better to go the long route round and lose, or more likely win, the case on its facts than to try to take a short cut and create unhelpful precedents for all Defendants.

Human Rights

The task for Defendants is to keep the human rights genie in its bottle. The very recent House of Lords judgement in Ali v Headteacher and Governors of Lord Grey School limited the impact of the Human Rights Act in the field of education. It concerned a claim that the right to education under Article 2 had been breached as a result of an unlawful exclusion. The school were saved because they had offered to provide work for the pupil to do from home and had invited him to a meeting to re-admit him to the school. He had therefore not been excluded from school education. This case established that Article 2 does not confer a right to be educated at a particular school. It was intended to guarantee fair and non-discriminatory access to the system of state education.

Another recent success for Defendants was SB –v- Head Teacher of Denbigh High School, where the House of Lords looked at breach of human rights in the context of exclusion of a Muslim pupil for failure to comply with the school dress code. They found that refusal to allow a pupil to wear a jilbab at school did not interfere with her right under Article 9 to manifest her religion and, even if it did, the decision was objectively justified under Aticle 9(2). Therefore, the pupil had not been denied access to education under Article 2.

In R on the application of Greenfield –v- The Secretary of State for Home Department the House of Lords held that, particularly with regard to the right to a fair trial, a finding of violation of a Claimant's rights will often be sufficient compensation. For the award of damages there must be a causal connection between the breach and the loss. The House noted that modest sums were often awarded and Section 8 awards were not comparable to awards in tortious claims.

In W –v- Westminster, a case involving a social worker and qualified privilege, the House of Lords found a breach of human rights but concluded that it was not appropriate in the circumstances for compensation to be paid.

New implications for the police have also surfaced in this area. Irwin Van Colle v Chief Constable of Hertfordshire found that failing to protect a witness and his family, when evidence is to be given for the prosecution in a criminal trial, is a breach of the Human Rights Act.

Tree Root Claims Following Loftus Brigham v Ealing LBC and Malewski v Ealing MBC the bar continues to be set quite low for Claimants to establish liability from a street tree.

In Kirk –v- Brent London Borough the court held that the fact that repair was completed before the local authority was notified of the alleged tree root nuisance did not, on the facts of the case, mean that the claim should be struck out.

Overall, the position continues to be that the insurance section of the local authority is paying heavily for the amenity value of trees.

Road Traffic

The predictive costs regime is now in place which should keep a lid on costs in motor claims. Cases such as Robinson –v- Doselle and Wollard –v- Fowler have resulted in some successes on the enforceability of conditional fee agreements and medical agency fees.

The insurance sector's focus has swung away from credit hire towards low velocity impact litigation and the case of Kearsley –v- Klarfeld has helpfully confirmed that a Defendant's stance on these cases does not require fraud to be pleaded.

Those of you with rising bollards in your shopping areas will have watched with interest the decision in Foyle –v- Bracknell Forest Borough Council which held that the bollards did not create a new danger or trap so as to lead to a common law duty of care.

Employers' Liability

A new costs regime is now in place for these claims which should help to limit Defendants' exposure. Where a case does not reach trial the uplift that counsel and solicitors can charge on their fees has now been limited to a fixed percentage depending on the type of injury suffered. These range from 25%, for broken limbs, to 100%, for psychiatric injury.

In Majrowski –v- Guys & St Thomas the court unhelpfully held that an employer could be liable for an employee's breach of his duties under the Protection From Harassment Act 1997.

In Grieves –v- Everard it was established that a cause of action did lie in respect of pleural plaques and guidance was provided as to the level of award.

Bolton MBC –v- MMI established that the right public liability policy to respond in cases of asbestos related disease is the policy in force when the disease first occurred, not when the exposure to asbestos occurred.

Limitation In the accountant's negligence case of Haward –v- Fawcett the House of Lords has helpfully indicated that when looking to see whether the Claimant has knowledge for the purpose of initiating proceedings he only needs knowledge of the facts constituting the essence of a complaint in negligence. Broadly the Claimant is fixed with knowledge at the date when he first knew enough to investigate the claim. This decision in the sphere of professional negligence is, helpfully, equally applicable to personal injury claims. We currently have two claims before the Court of Appeal on the limitation issue where the Claimants are looking to push back the boundary in their favour. Judgments are awaited and it remains to be seen whether there is any difference in approach between the House of Lords and the Court of Appeal.

Occupiers' Liability

Common sense continues to reign following Tomlinson –v- Congleton Borough Council. Keown –v- Coventry Healthcare NHS Trust and Maloney –v- Torfaen County Borough Council have resulted in findings in favour of Defendants. The case of Young –v- Kent County Council was probably wrongly decided and should have been appealed.

Housing

Noise transmission has become a regular problem for local authorities who have tenants in flats.

The position has not changed in the Civil courts, there is still no protection against noise transmission.

Although R (on the application of Vella) v Lambeth LBC and London and Quadrant Housing Trust found that s79 of the Environment Protection Act 1990 does not cover noise disturbance, there may be some new statutory protection. A new fitness standard comes into force on 6 April 2006 which includes protection from noise. A local authority may therefore be able to serve improvement notices on property owners after this date.