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No duty of care owed by regulators to members of the public following an outbreak of E Coli.

In Summer 2009, Godstone Farm, a petting farm, became the source of a serious outbreak of E Coli 0157. Many children who visited the farm became ill, a number seriously, and some continue to suffer from long-term health problems.

The children sued the farm in negligence, for breach of the Occupiers’ Liability Act 1957, and for breach of statutory duty including the Control of Substances Hazardous to Health Regulations. The farm admitted liability, and brought additional claims against Tandridge District Council (“TDC”) and the Health Protection Authority (“HPA”) contending they were aware of an outbreak traceable to the farm but took no adequate steps to limit or prevent exposure of visitors. TDC and the HPA strongly disputed this. The farm’s case was that TDC and the HPA owed a duty of care to the claimants: TDC and the HPA argued there was no relevant duty of care.

The farm’s additional claims were struck out by the Senior Master. The farm appealed, and this appeal was dismissed today by Turner J.

The first issue to be considered was whether, given the statutory background under which TDC and the HPA operated, they could owe individuals a duty of care.

The farm could point to no actionable breach of statutory duty. In Gorringe v Calderdale MBC [2004] 1 WLR 1057 Lord Hoffmann observed that it would be “difficult to imagine a case in which a common law duty can be founded simply on the failure (however irrational) to provide some benefit which a public authority has a power (or a public law duty) to provide”. Lord Scott held that where a statutory duty does not give rise to a private right to sue for a breach, the duty cannot create a common law duty of care that would not otherwise arise. The judge considered that “it should now be taken as settled law that no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty”.

The farm relied heavily on Health and Safety Executive v Thames Trains [2003] EWCA Civ 720, which provides a rare example of a regulator being held liable. The judge considered this should be treated with caution: the case pre-dated Gorringe and in fact the HSE had arguably performed positive acts which had caused or contributed to the train disaster in question.

The next issue was whether the conduct of TDC and the HPA gave rise to a duty of care. This could happen if their acts had made the situation worse than it would otherwise have been: the farm could point to no such actions. Alternatively, if there had been an assumption of responsibility there could be a duty of care.

The judge held that there was no such assumption of responsibility. TDC and the HPA were acting primarily for the public good and not in the private interests of visitors to the farm. The class of potential victims was very wide indeed – it was not even limited to visitors to the farm. There was no contact between TDC and the HPA and any of the claimants. Cases with much closer degrees of proximity than this had failed. Finally, the public bodies in question had to balance competing interests. The decisions as to what, if any, enforcement action to take – which could have a serious knock-on effect on the farm – should be uncluttered by the risk of being sued. Other remedies were available in public law or through internal disciplinary measures. 

The judge noted that this was completely new situation where a duty of care had been argued for. None the less, “novelty is no substitute for merit” and the additional claims should be struck out.

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