Reference has been made earlier in this chapter to the powers of a local author- ity to enter a contract. Where the local authority acts in breach of a lawful con- tract it is generally liable for damages or any other appropriate remedy in the same way as any other individual. The same would be true of public corpora- tions, the subject of Chapter 6. However, where the contract is entered into by or on behalf of the Crown, special rules of law apply and these are outlined in Chapter 14. Apart from contractual liability, it should be remembered that an
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individual or other corporate body may be liable in tort or criminally liable for its acts or omissions. Criminal liability is a well recognised part of the law.
Tortious liability, on the other hand, deserves some explanation. In very general terms, a tort is a civil wrong. Consequently, where an individual or other corpo- rate body can persuade a court that his rights guaranteed by the law of tort have been infringed, he should be able to claim the appropriate remedy which may be damages as compensation for any loss or injury, or (perhaps) an injunction to prevent any repetition of the unlawful conduct in question. Prominent exam- ples of torts, as they are known, include negligence, nuisance, strict liability, trespass, defamation and breach of statutory duty. This final section of the chap- ter will concentrate on the tortious and criminal liability of local authorities and most of the law here is equally applicable to the public corporations which are dealt with in Chapter 6.
4.11.1 Tortious liability
Although the general rule is that a local authority is liable for its tortious acts or omissions, there are notable exceptions, particularly on those occasions when there is statutory authorisation. By way of an example, the Acquisition of Land Act 1981 empowers a local authority to effect entry to land which is being com- pulsorily purchased. Consequently, where the requirements of the Act are met the local authority in this case would have the best defence to a civil action for trespass by the landowner, that is, statutory authorisation. One crucial area of tortious liability is that relating to the vicarious liability of an employer for the acts or omissions of his employee. However, where the employee of a local authority also operates in another capacity unrelated to his status as a local authority employee, his employer may not be vicariously liable. This proposi- tion can be illustrated by the case of Stanbury v Exeter Corporation(1905) where sheep, allegedly suffering from an infection, were seized negligently by an inspector who, although he was employed by the local authority, was operating as an inspector under the independent statutory authority of the Diseases of Animals Act. By way of contrast, in Ministry of Housing and Local Government v Sharp(1970) a local authority was found to be vicariously liable even though the negligent employee had the statutory status of local land charges registrar.
4.11.2 Statutory authority
There has been a reference to statutory authority in the previous section but the area where it has considerable significance is nuisance. A nuisance is some act which interferes with a person’s use and enjoyment of his land although the law will not protect a person of peculiar sensitivity. Where Parliament legislates to authorise the construction of large and perhaps controversial undertakings like oil refineries, it will usually authorise all aspects of the construction and use. In so doing the statute takes away the possibility of establishing liability in nui-
sance against the agency responsible in respect of physical interference arising from construction and use of the undertaking. The courts reinforce this position by saying that the statutory agency in question has authority in respect of any- thing arising from construction and use which is the inevitable consequence of these activities. In Allen v Gulf Oil Refining Ltd (1981), for example, it was decided that noise, smell and vibration were the inevitable consequences of the establishment of an oil refinery. However, where the statutory agency has a dis- cretion, that is, a choice, in deciding where to establish an undertaking, that dis- cretion must be exercised so that a nuisance is avoided (Metropolitan Asylum Board v Hill(1881)). In other words, Parliament has not presumed that a particu- lar site is the only one suitable for the purpose so that the statutory agency has to be as vigilant as anybody else in exercising its powers in order to avoid nui- sances. In the same way, there is no defence available to the statutory agency that a function is being performed reasonably in the interests of the public (Pride of Derby and Derbyshire Angling Association v British Celanese Ltd (1953)). Where there is statutory authority for the establishment of some public or other under- taking such as an oil refinery, motorway or airport, the statutory provisions, having taken away the right to sue for nuisance, usually allow any individual whose land is affected to claim compensation according to criteria set down in those or other statutory provisions.
4.11.3 Negligence
In general terms, negligence indicates a failure to take reasonable care in under- taking some activity. In order to succeed in an action for damages for negli- gence it is necessary to establish:
(a) that there is a duty on the defendant to take reasonable care, usually because the defendant should have had his victim’s interests and welfare in mind;
(b) that there is a breach of the duty; and
(c) as a result the victim has suffered some reasonably foreseeable injury, loss or other damage.
In the case of a local authority performing a statutory duty, the law imposes lia- bility for any negligent exercise of that duty. Consequently, Parliament pre- sumes that every statutory duty will not be performed negligently. Where the authority has a discretion as to the ways and means to be used for the perfor- mance of a statutory function there will be liability where the authority chooses to perform it and performs it negligently (Dutton v Bognor Regis Urban District Council (1972)). On the other hand, where it is decided not to perform the func- tion or to perform it only partially, liability in negligence arises only where that (policy) decision is ultra vires and it is possible to establish the three require- ments for negligence mentioned above (Anns v Merton London Borough Council (1977)). This approach, however, may now be severely limited by the decision of the House of Lords in Murphy v Brentwood District Council (1990). The critical
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issue in this case was whether the avoidance of economic loss – as opposed to physical damage or injury – fell within the scope of the duty of care owed to the plaintiff by the local authority in its enforcement of the building regulations relating to the health and safety of those using and occupying buildings.
Recovery of economic loss must be by reference to remedies in the law of con- tract. However, if a person suffers physical injury as a result of a breach by the local authority of its duty of care, damages in negligence may well be available.
A local authority may also be liable in respect of a negligent misstatement, in which case a crucial requirement is that the individual concerned, eg an officer of a local authority, holds himself out as having the requisite expertise (Hedley, Byrne & Co Ltd v Heller & Partners (1963)). However, the House of Lords in Murphy added a further requirement: that there should be evidence of some reliance by the building owner on the local authority. Despite this view the House of Lords did not consider that the ‘normal’ relationship here would show evidence of any ‘reliance’, at least in the normal run of tasks involving the approval of plans and the inspection of buildings. Even where there is no negli- gence the law may impose so called ‘strict’ liability where a person, for his own purposes, brings onto his land and collects and keeps there anything likely to do mischief if its escapes (Rylands v Fletcher (1868)). Where the defendant local authority has brought onto its land some dangerous substance, any damage, loss or injury caused by its escape will bring liability, even though the authority took reasonable care. Nevertheless, there must be reasonable foreseeability of the loss or harm occurring; even in these circumstances there must be control over the offending ‘substance’ as a pre-requisite for liability Cambridge Water Co v Eastern Counties Leather plc (1993). The decision in the Cambridge Water case also suggests, obiter, that the other pre-requisite for strict liability – a non-nat- ural user of land – may occur in respect of a great many industrial land uses.
However, any public authority which functions for the ‘public benefit’ is not taken to be acting ‘for its own purposes’ in this context (Dunne v North Western Gas Board (1963)). In Dunne gas escaped from a main and injured persons and property as a result of a leak from a water main which had removed soil sup- porting the gas main.
4.11.4 Breach of statutory duty
The House of Lords in a group of cases (X (Minors) v Bedfordshire County Council;
M (a Minor) and Another v Newham London Borough Council and Others; E (a Minor) v Dorset County Council; and Keating v Bromley London Borough Council (1995)) has held that, normally, a breach of statutory duty does not give rise to a private law cause of action in tort. However, such an action might arise if it could be shown that the statutory duty was imposed for the protection of a lim- ited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of duty. It was suggested that there are various indicators to show the possible existence of such a right of action: in
particular the absence of any other statutory remedy in the absence also of any other protection for the limited class in question.
The House of Lords showed great reluctance to allow statutory duties to be subject to a duty of care. In the case of local authority responsibility for the wel- fare of children in particular it was seen as cutting across an inter-disciplinary system established by statute for the protection of children. If a negligent exer- cise of a statutory duty is alleged, the plaintiff must be able to show a duty of care as opposed to a mere assertion of carelessness. In drawing a distinction between a duty of care in the exercise of a statutory discretion and a duty of care affecting the manner in which a statutory duty is implemented, the House of Lords stressed that the law cannot interfere with a discretion properly given to the administrative agency. Similarly, there could be no interference where implementation of decisions involves matters of policy. Overall, any common law duty of care that is consistent with or has a tendency to discourage the due performance of statutory duty will not be imposed by the court.
4.11.5 Criminal liability
It is possible for a local authority to be convicted of a criminal offence although there are clear limitations in that an authority cannot be convicted of an offence punishable with imprisonment. Similarly a local authority is subject only to those offences which can be committed vicariously. In York District Council v Poller(1975) a builder’s skip was hired by the council’s housing department. An official intimated to the owner of the skip that there was a ‘blanket permission’
to leave skips on the highway. The local authority was later (and correctly)con- victed of an offence under the Highways Act 1971 since the offence had been committed ‘owing to the act or default of some other person’, in this case the local authority. In practice, whether the local authority is criminally liable often depends on the extent to which the officer or employee is seen as acting for the authority in the performance of its functions. The legal principle is found in a case involving a company which was acquitted of an offence against the Trade Descriptions Act, Tesco Supermarkets Ltd v Nattrass(1971) where Lord Reid in the House of Lords said that:
[T]he board of directors may delegate some part of their functions of man- agement giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the Company.
As far as local government is concerned, it is clear from this relevant statement of principle that wherever there is in issue a criminal offence which a local authority is capable of committing, the local authority will avoid conviction only where any delegate of that body is clearly acting beyond any express or implied limits of delegated powers, eg as a committee or officer.
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