E. Public authorities
The duty of care owed by public authorities in negligence is generally governed by the same common law principles that apply to private individuals. There is no general immunity from suit for public bodies simply because they are performing public functions. Instead, the law applies an incremental and analogical approach based on established categories of duty.
Policy decisions and operational acts
A key question is whether the claim concerns a policy decision or an operational act. Courts are usually reluctant to review high-level decisions involving social, political, economic, or resource-allocation choices, but they are more willing to apply ordinary negligence principles to the practical carrying out of an adopted policy.
For example, a complaint that there were too few ambulances on the road is more likely to be treated as a policy or resourcing issue, while a complaint that an available ambulance was negligently delayed in responding to a call is more likely to be treated as an operational matter. For operational matters, a public authority may owe the same kind of duty of care as any other defendant, including in areas such as health care, education, road use, and workplace safety.
General principles of liability
Liability for a public authority typically depends on whether the harm was caused by a positive act (misfeasance) or a failure to act (nonfeasance/omission).
(i) Positive acts
A public authority will generally be liable if it actively creates a risk of harm through a negligent positive act that foreseeably causes physical injury.
(ii) Omissions
Following the general common law rule, public authorities are not generally liable for failing to act to prevent harm from third parties or natural causes. Merely having a statutory power to act does not, on its own, create a common law duty of care to exercise that power.
When a duty to act arises
A duty to act (preventing harm from a third party or other source) only arises in exceptional circumstances:
- Assumption of responsibility: If an authority, through its words or conduct, undertakes responsibility for a particular individual’s safety and that person relies on the assurance.
- Control: Where the authority exercises a high degree of control over the source of the danger or over the victim who is in a vulnerable state.
- Creation of danger: If the authority negligently creates or adopts a source of danger that it then fails to abate.
- Interference principle: Doing something that discourages or prevents a third party from helping the plaintiff.
Police
The police do not generally owe a private law duty of care to members of the public, or to victims and witnesses, in relation to the investigation and suppression of crime.
