UNIVERSITY OF LUSAKA SCHOOL OF LAW ADMINISTRATIVE LAW UNIT 12: LIABILITY OF PUBLIC BODIES IN CONTRACT AND TORT PRESENTED BY Kasumpa M. Kabalata UNIVERSITY OF LUSAKA SCHOOL OF LAW ADMINISTRATIVE LAW

Presentation layout Liability in Tort; Breach of Statutory duty; Nuisance: Liability in Negligence, Misfeasance in a public office. Liability in Contract Breach of Human Rights

introduction This module discusses this primary question ; to what extent can private law be used to control government and other bodies performing public functions?

According to Professor Dicey the fact that public bodies were liable in civil actions in the same way as any private individual was a fundamental tenent of the rule of law. This is to say the law applies equally regardless of whether the Defendant is an individual or a public body. In Principal, public bodies can now be held liable in Civil actions just as any private citizen.

introduction Immunities have operated in the past. At one time, the state was immune from criminal or civil liability. As a result, governmental bodies could not be held liable in private law. The only means of seeking redress was to sue the individual officers. The Crown proceedings Act of 1954 removed this immunity

Liability in tort Should a public officer be held liable for torts in the same way that a private individual can be held liable ? 4. (1) Subject to the provisions of this Act, the State shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject- Markesins and Deakin set out a number of persuasive arguments as to why governmental should be treated as a special case; 1.) Omissions and Economic loss. If a claim which is economic in nature arose it would be met by the public at large in the form of taxation. However, a local authority may take precautionary measures by taking out insurance.

Liability in tort 2.) Special Treatment of governmental bodies; The argument being that such treatment would save the government from frivolous, unmeritous and vexatious claims. Further that government can not normally become insolvent or bankrupt. 3.) Policy Making Functions; The Courts should not be resurrecting the policy making functions of a public body and should not be interfering with decisions not amenable to judicial review.

Contractual Liability State Proceedings Act – cap 71 3. Subject to the provisions of this Act, the State shall be subject to those liabilities in contract to which, if it were a private person of full age and capacity, it would be subject and any claim arising therefrom may be enforced as of right against the State in accordance with the provisions of this Act.  

Liability in Contract Continued… The state may enter into contracts and under the State Proceedings Act may sue and be sued in contract. All actions should be brought by or against the Attorney General. Government Departments enter into contracts in the name of the state. Officials and Ministers are not personally liable. Where there is an existing contract, the Court will not exercise Judicial review but will find that relief lies in private law.

Contractual Liability Unlike ordinary contracts, government may claim public policy in defence to an action for breach of contract. The effect of the plea is unclear. The plea is also relevant as regards the relationship between breach of contract and the doctrine of ultra vires.

State in litigation Judgments 22. In any proceedings against the State under this Act, judgment shall not be entered against the State in default of appearance or pleading without the leave of the court to be obtained on application of which at least fourteen clear days' notice has been given to the Attorney-General, or, if a legal practitioner in private practice is acting for the State in the proceedings, to such legal practitioner.

Enforcement of Judgments agains the state It is important to note that a Judgment can not be enforced against the state. That is to say, even where you obtain a Judgment for breach of contract, tort, etc, it can not be enforced against the state.

Liability in tort……… The pertinent question was put across in the case of X (Minors) Vs Bedfordshire County Council (1995) by Lord Browne as being whether; “If parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority’s performance or non performance of that function has a right of action in damages against the authority” According to Lord Browne, a public body must be held liable in tort in the following circumstances;

1. Breach of a statutory duty 2. Action based on careless performance of a statutory duty 3. Actions based on common law duty of care arising whether from imposition of a statutory duty or from the performance of it. 4. Misfeasance in public office

Breach of a statutory duty Where a statute imposes a duty it is sometimes to be inferred that any person injured as the result of the breach of that duty shall have a remedy in damages, even in the absence of carelessness. This is another form of strict liability. Public authorities will be held liable for damages even if they are not at fault at all. Every thing is dependant upon the true intent of the statute.

To succeed a claimant must show that a statutory duty existed, the defendant owed a duty, breach of that duty and damage. The action arises if a Plaintiff can show that on construction of the statute a statutory duty was imposed for the protection of a limited class of the public and that parliament intended to confer on members of that class a private right of action for breach of that duty. There is no general rule as to when the cause of action could arise.

Action based on careless performance of a statutory duty In this case, a plaintiff alleges a statutory duty and a negligent breach of that duty. Lord Browne – Wilkinson in X Vs Bedfordshire County Council ( 1995) stated that a careless performance of a statutory duty does not in itself give rise to a cause of action. To sustain a cause of action there must be either a statutory right of action or a common law duty of care.

Actions based on common law duty of care arising whether from imposition of a statutory duty or from the performance of it. Lord Blackburn stated in the case of Geddis Vs Proprietors of Bann Reservoir (1878) stated ; “ It is now thoroughly well established that no action will lie for doing that which the legislature has authorized if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently.”

Misfeasance in public office This can be described as public law tort since it applies only to the activities of public officials. The tort is committed only if an official either knew that the action was ultra vires or acted with improper motives. Essentially what is required is the abuse of a public office resulting in damage to a plaintiff. Knowledge that the act complained of was taken in excess of the power conferred or with malice towards the plaintiff established abuse of office.

nuisance What is done under statutory authority is lawful for which no one is entitled to complain. A public authority will therefore not be liable in tort where the injury is the inevitable consequence of what parliament has authorized. The nuisance caused by the running train authorized to be operated in an area is therefore not actionable. Even small vibrations from an oil refinery were found not actionable. A local authority could be held liable if it failed to remove gypsies from it’s land.

Liability in negligence Negligence is a common law cause of action. A litigant against a public authority would have to prove the same elements he would prove in a private cause of action. The cause of action should arise out of the performance of statutory functions. A public authority can not be held liable for doing what parliament has authorized.

Breach of human rights Government is not immune to actions arising from it’s breach of Human Rights. Rights of Citizens are contained in Article 13 of the Bill of Rights. Infact under that Article if Government is found liable it has to compensate a citizen. An application for compensation is made by way of Petition to the High Court.