Browne-Wilkinson, giving judgment of House –
of statutory duty by itself not
sufficient to give rise to private law cause of action.
was possible to make private law claim for breach of statutory duty if it could
be shown as matter of construction that statute imposed the duty for the
protection of a limited class of the public and Parliament intended to confer
on members of that class a private right of action for breach.
might be established by taking into account a number of indicators.
eg, if statutory right provides other means of enforcement, this might suggest
enforcement ought normally to be by those other means.
notwithstanding such statutory means of enforcement, might still be possible to
show that by true construction of statute Parliament intended to provide a
private law remedy.
of Lords gave guidance as to when public authorities can be held liable in
negligence regarding performance of a statutory function.
assertion of careless exercise of statutory power or duty not sufficient to
give rise to private law cause of action.
only had action if he could show circumstances were such as to raise common law
duty of care.
raise common law duty of care, must show that:
Decision was outside ambit of authority’s discretion.
it was for the authority and not the courts to exercise a statutory discretion
conferred on it by Parliament, nothing the authority did within ambit of the
discretion could be actionable at common law.
if decision was so unreasonable that it fell outside ambit of the discretion
conferred (unreasonable in the Wednesbury
sense) then this could give rise to common law liability.
Even if decision is outside ambit of authority’s discretion, will be no common
law duty of care relating to the taking of decisions involving policy matters, since these decisions
termed the ‘policy vs operations’ distinction]
these hurdles are passed, claimant must then satisfy three requirements in Caparo v Dickman namely,
That defendant ought to have foreseen that plaintiff might suffer injury or
damage if defendant acted negligently,
That there was sufficient relationship of proximity between plaintiff and
That it would be fair, just and reasonable to impose a duty of care on the defendant.
case involved local authority investigation of child abuse.
in negligence failed on third limb of Caparo
not be fair just and reasonable to impose duty of care on local authorities in
child abuse cases.
various policy reasons.