18. Failure by public bodies to exercise statutory powers.

A public body will not normally be liable for damage caused by a failure to exercise its statutory power1. It has been considered that a duty might exist where the failure concerned an operational rather than a policy matter, but this has now been doubted2. It is now said that the minimum pre-conditions for such a duty of care are:

  1.  

    (1)     that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act; and

  2.  

    (2)     that there are exceptional grounds for holding that the

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