{"id":4820,"date":"2018-09-28T19:40:56","date_gmt":"2018-09-28T19:40:56","guid":{"rendered":"http:\/\/legalblog.ie\/public-body-liability\/"},"modified":"2018-09-28T19:40:56","modified_gmt":"2018-09-28T19:40:56","slug":"public-body-liability","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/public-body-liability\/","title":{"rendered":"Public Body Liability"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Compensation_and_the_State\" title=\"Compensation and the State\">Compensation and the State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Not_Ordinarily_Liable\" title=\"Not Ordinarily Liable\">Not Ordinarily Liable<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#State_Powers_and_Liability\" title=\"State Powers and Liability\">State Powers and Liability<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Specific_Statutory_Immunities\" title=\"Specific Statutory Immunities\">Specific Statutory Immunities<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Basis_for_Liability\" title=\"Basis for Liability\">Basis for Liability<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Constitutional_Rights\" title=\"Constitutional Rights\">Constitutional Rights<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Private_Individual_Rights\" title=\"Private Individual Rights\">Private Individual Rights<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Proportionality\" title=\"Proportionality\">Proportionality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/public-body-liability\/#Administrative_Circulars_Longstanding_Practices\" title=\"Administrative Circulars \/ Longstanding Practices\">Administrative Circulars \/ Longstanding Practices<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Compensation_and_the_State\"><\/span><strong>Compensation and the State<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>On an application for judicial review of an administrative decision, a claim for compensation may be made. \u00a0If the applicant would have succeeded in a civil claim against the authority, damages may be awarded.\u00a0 Proceedings for compensation can be brought separately in some cases.<\/p>\n<p>The State does not enjoy general immunity from being sued for civil wrongs.\u00a0 Formerly there were certain restrictions on suing the State, but these were found to be unconstitutional. \u00a0These former special immunities that once existed for public bodies from being sued have been removed.<\/p>\n<p>If a particular course of action that would otherwise be a civil wrong is required by legislation, e.g. undertaking certain works then if the inevitable consequence is that it causes loss or damage, then the authority generally is not liable provided the acts is not done negligently. Therefore, for example, what might otherwise be a nuisance would be generally immune from a claim for compensation on this principle.<\/p>\n<p>Generally, the official action must be specifically mandated by legislation. \u00a0For example, the construction of road works may be immunised for the nuisance they cause. However\u00a0unnecessary acts, such as the incidental storage of materials in a particular place in connection with the works may not be exempt and may continue a nuisance or negligence.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Not_Ordinarily_Liable\"><\/span>Not Ordinarily Liable<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, persons and government departments acting bona fide in accordance with the powers, are immune from legal action for the consequences of their decisions.\u00a0 Generally, officers have immunity from liability for their actions.<\/p>\n<p>In many cases where the authority has the power to require matters to be cleared up or rectified on public health or amenity grounds, there is no right to compensation.\u00a0 For example, where a local authority requires the removal of a dangerous building, a wall, prevention of water pollution, demolition of a dangerous house, most planning refusals and numerous other circumstances, do not generally carry a rise of compensation.<\/p>\n<p>There are numerous grounds permitted by statute by\u00a0which public bodies may act in ways which diminish private rights and interests without having any liability to pay compensation.\u00a0 Where however property rights are taken or there is some interference, for example, the construction of an easement, flood barriers, etc. compensation will generally be provided and the Constitution most likely requires it.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"State_Powers_and_Liability\"><\/span>State Powers and Liability<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, public bodies are not liable for negligence in relation to the exercise and non-exercise of the powers.\u00a0In some cases, the Courts have held that where third parties have relied on public authorities in the exercise of their functions, they may be liable in negligence.<\/p>\n<p>In some cases where a member of the public reasonably relies on the exercise of statutory functions and this is foreseeable by the authority, the local authorities may be liable to compensate where they have acted negligently.<\/p>\n<p>There are limited circumstances only in which a member of the public may recover on the basis of the negligent exercise of a power.\u00a0 It may apply where powers are specifically granted to protect members of the public and it is foreseeable that they will rely on and suffer loss if the powers are exercised negligently. \u00a0Discretionary decisions will rarely give right to a right of compensation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Specific_Statutory_Immunities\"><\/span>Specific Statutory Immunities<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Road authorities are not liable for injuries and damage caused by failure to keep the roads in good condition.\u00a0 In contrast, they are liable for so-called misfeasance where works are done negligently and an accident is thereby caused.<\/p>\n<p>Certain other immunities are granted by legislation. \u00a0Postal and telecommunications services provider are immunised from liability for loss and damage caused in the operation of the postal service by reason of failure to operate or maintain the postal service or by the interruption, suspension, restriction of a postal service.<\/p>\n<p>Fire authorities discharging their fire safety, firefighting and fire prevention functions are immunised from liability to pay compensation in respect of injury to persons or property caused or contributed by failure to perform their functions.<\/p>\n<p>The police authorities would generally be assumed to be immune from liability for the proper exercise of their functions.\u00a0 Most regulatory agents are immune from claims in relation to the activity.<\/p>\n<p>The Financial Regulator \/ Central has substantial immunity from liability for failures in the performance of their functions.<\/p>\n<p>The Health and Safety Authority has similar immunity arising from lost cause or contributed to by the failure to comply with any of their functions or obligations.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Basis_for_Liability\"><\/span>Basis for Liability<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A public authority is not liable to compensate for the consequences of its actions even if they are found to be invalid unless:<\/p>\n<ul>\n<li>they constitute an existing basis of claim,<\/li>\n<li>the act was done maliciously and deliberately knowing there was no power in which event\u00a0 it may constitute the separate civil wrong of abuse of office,<\/li>\n<li>\u00a0it is a breach of statutory duty or<\/li>\n<li>constitutes a breach of personal rights or legitimate expectation.<\/li>\n<\/ul>\n<p>The State may be liable and public authorities may be liable for negligence, false imprisonment, nuisance etc.<\/p>\n<p>Abuse of a public office is rarely found.\u00a0 It would be necessary to prove the official acted deliberately with the knowledge that it was abusing and outside its jurisdiction.\u00a0 In practice, it is difficult to show and prove that the public authority or official acted deliberately with knowledge of lack of authority.<\/p>\n<p>Sometimes a statutory duty in legislation creates a right of compensation where a person suffers financial or suffers loss by breach of the duty. \u00a0This is a question of interpretation of the intention of the legislation.<\/p>\n<p>If the duty is to the public at large there is unlikely to be any right of compensation for breach of duty. \u00a0The Courts interpret whether the legislation is intended to create such a right of compensation.\u00a0 If this is so then the State may be liable for breach of it.<\/p>\n<p>European Union legislation obliges the State to enact certain laws. \u00a0A Member State may be liable to compensate for loss directly incurred by reason of the failure, properly to implement a Directive affording individuals enforceable rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Constitutional_Rights\"><\/span>Constitutional Rights<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Certain fundamental rights are deemed constitutional rights. They must be protected by the State in legislation and cannot be changed by legislation.\u00a0 The Courts have allowed compensation for breaches of constitutional rights additional to those provided for conventional torts \/ civil wrongs<\/p>\n<p>Damages have been awarded for breach of rights that would not traditionally have been protected.\u00a0 Damages have been awarded for breach of the right to fair procedures where monetary loss can be established. \u00a0A person who has suffered loss or damage by breach of a constitutional right is entitled to seek redress or compensation against those who have breached their right.<\/p>\n<p>There have been several cases where compensation has been granted for breach of constitutional rights outside the scope of existing tort law in cases against the State.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Private_Individual_Rights\"><\/span>Private Individual Rights<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, there is no right to compensation for invalid administrative action. \u00a0Where however the action interferes with a person\\&#8217;s private rights or constitutes a civil wrong, there may be a right of compensation.<\/p>\n<p>The Constitution protects property rights. It prohibits an unjust attack on property rights but provides that the State may regulate property rights.\u00a0 The Courts sometimes will review whether the State has acted in a constitutionally permitted way.<\/p>\n<p>The Constitution will generally require that compensation be\u00a0paid and be determined independently.\u00a0 In some cases\u00a0where the law did not mention compensation, the courts have implied that compensation must be paid.<\/p>\n<p>Employees of the public service and public servants have much the same obligations as private employees.\u00a0 For example, if they cause injury in the course of their employment the State may be sued for their actions.<\/p>\n<p>States and public authorities are liable under contracts and undertakings.\u00a0 A change of government does not entitle the State to renege on contractual obligations it has undertaken.<\/p>\n<p>Where the State wrongfully induces persons to pay taxes and other sums on foot of a wrongful interpretation of legislation the persons will generally be entitled to a refund by way of restitution style.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Proportionality\"><\/span>Proportionality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Administrative authorities should maintain a balance between the effects that have on individuals in terms of the liberties and interests and the objective to be achieved.\u00a0 Where, for example, persons have been deprived of the livelihood on relatively trivial ground or where a penalty is wholly disproportionate to the matter the legislation is directed towards it may be invalid.\u00a0Where relatively minor breaches may e severe consequences, they may be held to be disproportionate.<\/p>\n<p>Proportionality arises under the European Convention on Human Rights in decision making.\u00a0 The Convention requiresies\u00a0\u00a0that\u00a0 administrative bodies must exercise their functions in a manner compatible with the State\u2019s obligations under the Convention\\&#8217;s provisions.<\/p>\n<p>&nbsp;<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Administrative_Circulars_Longstanding_Practices\"><\/span>Administrative Circulars \/ Longstanding Practices<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a higher probability of a legitimate expectation being established where a personal assurance or promise has been given which does not circumscribe legal powers.\u00a0 The alleged policy or basis must have been clearly shown to be communicated to the person concerned.<\/p>\n<p>It is more likely that the right to a fair hearing or procedural right will be held to b reqquied than that a substantial benefit is required.\u00a0In some casez, however, a change of policy would be so unfair as to amount to an abuse of power.\u00a0 In this case, the Court may hold it to be\u00a0 void.<\/p>\n<p>Where a lawful promise induces a legitimate expectation of a benefit as opposed to the benefit of a procedure, the Court may decide that the frustration of the expectation is so unfair that to take a different course would amount to an abuse of power. \u00a0The courts balance the interests of the member concerned and the decision maker.<\/p>\n<p>Administrative circulars may create legitimate expectation.\u00a0 The Revenue Commissioners may grant advance rulings or give statutory concessions. \u00a0The Revenue Commissioners now publish many of their practices in their tax briefing notes. \u00a0Questions will arise as to how specifically details of the prior ruling was.\u00a0 Generally may not make any difference.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4820\" data-postid=\"4820\" class=\"themify_builder_content themify_builder_content-4820 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Compensation and the State On an application for judicial review of an administrative decision, a claim for compensation may be made. \u00a0If the applicant would have succeeded in a civil claim against the authority, damages may be awarded.\u00a0 Proceedings for compensation can be brought separately in some cases. The State does not enjoy general immunity [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[130],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4820"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4820"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4820\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4820"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4820"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4820"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}