Public Authority and Municipal Negligence: The Policy and Operation Line, and the Recurring Failures

A public body answers in negligence like any other defendant, with two qualifications. After N. Nagendra Rao and Co. v. State of Andhra Pradesh sovereign immunity survives only for the primary and inalienable functions, and a municipal corporation, being a statutory body and not the State, has none at all. What remains distinctive are two questions: whether the complaint attacks a policy decision about the allocation of resources, which is not readily justiciable, and whether a statutory power can be converted into a private duty to exercise it, which it almost never can.

The two qualifications, where the duty is clearest, the three routes, and the recurring failures

1. The Position After Nagendra Rao

• Sovereign immunity now survives only for the primary and inalienable functions of a constitutional government: defence, the armed forces, war and peace, foreign affairs, the administration of justice, the maintenance of law and order and the repression of crime: TORT 051.
• Almost every ordinary activity of government falls outside it: hospitals, transport, public works, regulatory custody of goods, education, utilities.
• A municipal corporation has no sovereign immunity at all. The doctrine attaches to the State, and a corporation created by statute is not the State for this purpose. It is a juristic person carrying on functions that private persons also perform, and it answers in negligence and in nuisance like any other occupier or undertaker.
• That is why the sovereign function argument almost never appears in the municipal cases, and why they are decided on ordinary principles.

2. Policy and Operation

• The line is easier to state than to draw, and many failures have elements of both: an uninspected tree may reflect a policy of employing too few inspectors and an operational failure to use the ones employed.
• The practical approach is to ask whether the complaint requires the court to second guess a resource allocation, in which case it will fail, or whether it identifies a failure to do properly something the authority had already undertaken to do, in which case it will not.
• An authority with no system at all is in a weak position, because the absence of any system of inspection or maintenance is itself a failure that no policy argument explains.

3. Power and Duty

• A statutory power to act almost never creates a private right of action for failing to exercise it. A power is conferred so that the authority may act if it judges it appropriate, and converting it into a duty owed to each individual would transfer the judgment from the authority to the court.
• A broadly worded target duty to provide a service seldom creates one either, for the reasons examined in TORT 078: such duties are owed to the public at large, their performance depends on resources the legislature has chosen to provide, and the statute ordinarily supplies its own machinery of complaint and supervision.
• X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 is the leading illustration, where statutory duties relating to child welfare and education were held not to give rise to private claims for damages.
• The claim is therefore usually put in negligence instead, where the question is whether a duty of care arose on ordinary principles.

4. Where the Duty of Care Is Clearest

• Where the authority assumed responsibility toward the particular claimant, by dealing with him individually, by giving him advice, or by undertaking to act for him.
• Where it created the danger itself, rather than merely failing to remove one that already existed. An authority that digs a trench has created the danger; an authority that fails to fill a hole somebody else dug has not.
• Where it took control of a situation and others relied on it, so that its intervention displaced whatever other protection would have been arranged.
• Where the claimant is in its custody or care: a prisoner, a patient, a schoolchild. There the relationship supplies the proximity that a general public duty lacks, and the authority has assumed responsibility for a person who cannot protect himself.
• And where the failure is purely operational, as against a complaint about the level at which the service was resourced.

5. The Three Routes

6. Defective Roads, Open Manholes and Excavations

• The recurring instances are an open or uncovered manhole, an unlit trench, an excavation without barricades, a collapsing culvert or retaining wall, a missing kerb, and a road surface allowed to deteriorate into a hazard.
• The claim lies in ordinary negligence, and frequently in nuisance as well where the obstruction affects a public highway.
• Res ipsa loquitur is usually available, since such things do not lie open in the absence of carelessness, and the facts of the maintenance regime are peculiarly within the authority's knowledge.
• The authority's answer is ordinarily that it did not know of the defect, which raises at once the question whether it had any system of inspection. A body with no system of inspection cannot rely on its own ignorance, because the ignorance is the consequence of the failure complained of.
• Where the excavation was made by a contractor, the authority is not automatically liable, but the duty in respect of work on a highway is non delegable, so the exception in TORT 049 applies and it answers notwithstanding that it engaged a competent contractor.

7. Falling Trees and Unsafe Buildings

• A tree that the authority planted, owns or maintains, which falls because it was diseased, founds a claim in negligence and in nuisance.
• The duty is to inspect at reasonable intervals and not merely to respond to complaints. An authority that maintains thousands of roadside trees and has no inspection programme at all has not discharged it.
• What is reasonable depends on the location and the risk. A tree over a crowded footpath calls for more frequent attention than one in an open field, and a species known to be prone to failure calls for more than one that is not.
• A dangerous building which the authority had power to require to be demolished, and did not, raises the power and duty problem in its sharpest form.
• The claim is strongest where the authority knew of the danger and had begun to act on it, since it has then moved from the exercise of a discretion into the operational performance of something undertaken, and weakest where the complaint is simply that it should have used a power it never exercised.

8. The Position Stated Shortly

1. After N. Nagendra Rao, sovereign immunity survives only for the primary and inalienable functions, and almost every ordinary activity of government falls outside it.

2. A municipal corporation is a statutory body and not the State, and has no sovereign immunity at all.

3. A policy decision about the allocation of limited resources is not readily justiciable in negligence; the operational performance of what was decided is.

4. An authority with no system of inspection or maintenance at all cannot rely on its own ignorance of a defect.

5. A statutory power almost never creates a private right of action for failing to exercise it, and a broadly worded target duty seldom does either.

6. The duty of care is clearest where the authority assumed responsibility, created the danger, took control, or has the claimant in its custody or care.

7. The three routes are ordinary negligence, breach of statutory duty which rarely succeeds against a public authority, and the constitutional tort.

8. Open manholes, unlit trenches and defective roads are ordinary negligence cases, and res ipsa loquitur is usually available.

9. The duty in respect of work on a highway is non delegable, so engaging a competent contractor is no answer.

10. A falling tree engages a duty to inspect at reasonable intervals and not merely to respond to complaints, measured against the location and the risk.