NEGLIGENCE & VICARIOUS LIABILITY

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Nelson says: "Sue the councillors who stayed silent"

 

 

WHO TO SUE:  If you are contemplating a claim in negligence, the biggest problem is often deciding who to sue.  The answer to that is who is responsible.  The second answer is: who has the money - there's no point going after a man of straw or an insolvent company.  I know Council's do, but then they are not playing with their own money - the ratepayer foots the bill, and up until October 2000 there was no Human Rights Act with which to put up a decent fight.

 

However, a Council is much like any other company (corporation) and it has a bottomless pit of other peoples money.  Only one Council has ever gone bankrupt as far as I know (Welwyn Hatfield Garden City Council) and the Claimant still got their 48 million in damages, the Council just raised their rates - I know it stinks for the ratepayer - but there so few controls on Councils and the District Auditor and Ombudsman are just for show.

 

If an employee of a company causes damage to another person then the company is vicariously liable for the tortious acts or omissions of it's employees - this would be the first defendant, they having the money.  Equally, the employee is him or herself liable, but unless they are well paid planning officers, or solicitors, it may be a waste of time chasing them for damages.  Now this is where it gets interesting, for if there is misfeasance involving the directors, then the directors are implicated and also vicariously liable.

 

IMMUNITY OF PUBLIC OFFICE:  Some acts of parliament suggest that Councillors and officers are immune from prosecution.  It is true that regarding simple accident or negligence matters those who run a public body are afforded some protected.  However, that is not the case where misfeasance is involved and where Officer and Councillor have worked together (become party to a cover up) to hide what otherwise may have begun as a simple mistake, or indeed failed to prevent discrimination or breaches of Articles 6, 8, 10 or 14.  That is when it gets serious. For one cover up, leads to ever more serious cover up or other diabolical deeds (malfeasance). 

 

The case which set the precedent in the European Court of Human Rights is Osman v United Kingdom 2000 29 EHRR 245.  The European Court found that although the "immunity" granted to the Police by the state had legitimate aims, it was not compatible with  Article 6 of the Convention if the "immunity" amounted to a blanket immunity without regard to the merits of individual cases.  There must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.  Being a public body also, a Council's employees/members come within the scope of this finding.  

 

Most Councils take out a public liability policy to protect employees and Councillors.  However, insurers may refuse to honour premiums where members knowingly break the law, relying on the insurer to cough up come what may.  That is like insuring your car, then deliberately driving it into a wall.  Whereas, a driver has a duty to his insurer and other road users, to avoid a collision.

 

WHERE TO SUE: If your Claim is for 15,000 or less, then proceed in the County Court.  If your Claim is likely to exceed 50,000 and involves Human Rights issues, you are looking at a High Court, Queens Bench action.  If in doubt ask the Court for guidance.  If you are a litigant in person, you may also be entitled to fee remission subject to means testing.  Additionally, the Court, being a public body is obliged to ensure you receive a fair hearing in accordance with Article 6, although this very much depends on how up to date the practitioner(s) might be.

 

MEMBERS LIABILITY: Are the members immune?

 

THANKS

 

Lastly, I would just like to say to the growing number of affected members of the public who telephone or email me, that I am so very pleased if anything we have published can be used to further just decision making in this great country of ours.  We just want to keep it great.  The encouragement is mutual!

 

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