Subsection (1) is subject to sections 3 to 7.

A reference in subsection (1) to a duty owed under the law of negligence includes a reference to a duty that would be owed under the law of negligence but for any statutory provision under which liability is imposed in place of liability under that law.

For the purposes of this Act, whether a particular organisation owes a duty of care to a particular individual is a question of law.

The judge must make any findings of fact necessary to decide that question.

In this section—

• “construction or maintenance operations” means operations of any of the following descriptions—

  1. a

     construction, installation, alteration, extension, improvement, repair, maintenance, decoration, cleaning, demolition or dismantling of—

     1. i

        any building or structure,

     2. ii

        anything else that forms, or is to form, part of the land, or

     3. iii

        any plant, vehicle or other thing;

  2. b

     operations that form an integral part of, or are preparatory to, or are for rendering complete, any operations within paragraph (a);

• “custodial institution” means a prison, a young offender institution, a secure training centre, F14a secure college, a young offenders institution, a young offenders centre, a juvenile justice centre or a remand centre;

• F6“customs premises” means premises wholly or partly occupied by persons designated under section 3 (general customs officials) or 11 (customs revenue officials) of the Borders, Citizenship and Immigration Act 2009;

• “detained patient” means—

  1. a

     a person who is detained in any premises under—

     1. i

        Part 2 or 3 of the Mental Health Act 1983 (c. 20) (“the 1983 Act”), or

     2. ii

        Part 2 or 3 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (“the 1986 Order”);

  2. b

     a person who (otherwise than by reason of being detained as mentioned in paragraph (a)) is deemed to be in legal custody by—

     1. i

        section 137 of the 1983 Act,

     2. ii

        Article 131 of the 1986 Order, or

     3. iii

        article 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078);

  3. c

     a person who is detained in any premises, or is otherwise in custody, under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or Part 6 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or who is detained in a hospital under section 200 of that Act of 1995;

• “immigration escort arrangements” means arrangements made under section 156 of the Immigration and Asylum Act 1999 (c. 33);

• “the law of negligence” includes—

  1. a

     in relation to England and Wales, the Occupiers' Liability Act 1957 (c. 31), the Defective Premises Act 1972 (c. 35) and the Occupiers' Liability Act 1984 (c. 3);

  2. b

     in relation to Scotland, the Occupiers' Liability (Scotland) Act 1960 (c. 30);

  3. c

     in relation to Northern Ireland, the Occupiers' Liability Act (Northern Ireland) 1957 (c. 25), the Defective Premises (Northern Ireland) Order 1975 (S.I. 1975/1039 (N.I. 9)), the Occupiers' Liability (Northern Ireland) Order 1987 (S.I. 1987/1280 (N.I. 15)) and the Defective Premises (Landlord's Liability) Act (Northern Ireland) 2001 (c. 10);

• “prison escort arrangements” means arrangements made under section 80 of the Criminal Justice Act 1991 (c. 53) or under section 102 or 118 of the Criminal Justice and Public Order Act 1994 (c. 33);

• “removal centre”F13, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;

• “secure accommodation” means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18.

• F7“service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.

Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”.

Any duty of care owed in respect of things done in the exercise of an exclusively public function is not a “relevant duty of care” unless it falls within section 2(1)(a), (b) or (d).

Any duty of care owed by a public authority in respect of inspections carried out in the exercise of a statutory function is not a “relevant duty of care” unless it falls within section 2(1)(a) or (b).

In this section—

• “exclusively public function” means a function that falls within the prerogative of the Crown or is, by its nature, exercisable only with authority conferred—

  1. a

     by the exercise of that prerogative, or

  2. b

     by or under a statutory provision;

• “statutory function” means a function conferred by or under a statutory provision.

The operations within this subsection are operations, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of the armed forces come under attack or face the threat of attack or violent resistance.

Any duty of care owed by the Ministry of Defence in respect of activities carried on by members of the special forces is not a “relevant duty of care”.

In this section “the special forces” means those units of the armed forces the maintenance of whose capabilities is the responsibility of the Director of Special Forces or which are for the time being subject to the operational command of that Director.

Any duty of care owed by a public authority in respect of other policing or law-enforcement activities is not a “relevant duty of care” unless it falls within section 2(1)(a), (b) or (d).

Any duty of care owed by an organisation within subsection (2) in respect of the way in which it responds to emergency circumstances is not a “relevant duty of care” unless it falls within section 2(1)(a) or (b).

The decisions within this subsection are decisions as to the carrying out of medical treatment, other than decisions as to the order in which persons are to be given such treatment.

Any duty of care owed in respect of the carrying out, or attempted carrying out, of a rescue operation at sea in emergency circumstances is not a “relevant duty of care” unless it falls within section 2(1)(a) or (b).

In this section—

• “emergency circumstances” means circumstances that are present or imminent and—

  1. a

     are causing, or are likely to cause, serious harm or a worsening of such harm, or

  2. b

     are likely to cause the death of a person;

• “medical treatment” includes any treatment or procedure of a medical or similar nature;

• “relevant NHS body” means—

  1. za

     F16NHS England;

  2. a

     F17an integrated care board,F8... F9... NHS trust, Special Health Authority or NHS foundation trust in England;

  3. b

     a Local Health Board, NHS trust or Special Health Authority in Wales;

  4. c

     a Health Board or Special Health Board in Scotland, or the Common Services Agency for the Scottish Health Service;

  5. d

     a F15Health and Social Care trust in Northern Ireland;

• “serious harm” means—

  1. a

     serious injury to or the serious illness (including mental illness) of a person;

  2. b

     serious harm to the environment (including the life and health of plants and animals);

  3. c

     serious harm to any building or other property.

A reference in this section to emergency circumstances includes a reference to circumstances that are believed to be emergency circumstances.

A duty of care to which this section applies is not a “relevant duty of care” unless it falls within section 2(1)(a), (b) or (d).

This section also applies to any duty of care that a provider of probation services owes in respect of the carrying out by it of activities in pursuance of arrangements under section 3 of the Offender Management Act 2007.