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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Stovin v Wise [1996] UKHL
15 (24 July 1996)
URL: http://www.bailii.org/uk/cases/UKHL/1996/15.html
Cite as: [1996] 3 WLR 389, [1996] 3 All ER 801, [1996] AC 923, [1996] UKHL 15
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JISCBAILII_CASE_TORT
JISCBAILII_CASE_CONSTITUTIONAL
Parliamentary Archives,
HL/PO/JU/18/256
Stovin and another (Respondent) v. Norfolk County Council (Appellants)
JUDGMENT
Die Mercurii 24° Julii 1996
Upon Report from the Appellate Committee to whom was referred the Cause
Stovin and another against Norfolk County Council, That the Committee had heard
Counsel as well on Tuesday the 23rd as on Wednesday the 24th day of January last upon
the Petition and Appeal of Norfolk County Council, of County Hall, Martineau Lane,
Norwich, praying that the matter of the Order set forth in the Schedule thereto, namely an
Order of Her Majesty's Court of Appeal of the 16th day of February 1994, might be
reviewed before Her Majesty the Queen in Her Court of Parliament and that the said
Order might be reversed, varied or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her Court of Parliament might
seem meet; as upon the case of Rita Wise lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of
Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's
Court of Appeal of the 16th day of February 1994 complained of in the said Appeal, and
the Order of His Honour Judge Crawford of the 27th day of July 1992, in the proceedings
between the Respondent as Defendant and the Appellants as Third Party, be, and the
same are hereby, Set aside and the Respondent's claims against the Appellants dismissed:
And it is further Ordered, That the Respondent do pay or cause to be paid to the said
Appellants the Costs incurred by them in the High Court, in the Court of Appeal and in
respect of the said Appeal to this House, the amount of such last-mentioned Costs to be
certified by the Clerk of the Parliaments if not agreed between the parties.
Cler: Parliamentor:
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
STOVIN AND ANOTHER
(RESPONDENT)
v.
NORFOLK COUNTY COUNCIL
(APPELLANTS)
ON 24TH JULY 1996
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Hoffmann
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Hoffmann and for the reasons he gives I too would
allow this appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Hoffmann and for the reasons he gives I too would
allow this appeal.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Nicholls of Birkenhead and for the reasons he gives
I too would dismiss this appeal.
-1-
LORD NICHOLLS OF BIRKENHEAD
My Lords,
This case arises at the interface of public and private law obligations:
the liability of a public authority in tort for failure to exercise a statutory
power. When may a public authority be liable in damages for an
unreasonable failure to act, in breach of its public law obligations?
The public body is a highway authority: Norfolk County Council.
Highway authorities have responsibilities for maintaining and improving
highways, including powers to remove potential sources of danger. Section
79 of the Highways Act 1980 is such a power. Where a highway authority
deems it necessary for the prevention of danger arising from obstruction to the
view of road users, the authority has power to serve a notice on the owner of
land directing him to alter a fence or wall or bank. The owner may recover
the cost from the authority.
Had Norfolk Council exercised this power in 1988 in respect of the
fork of land at the junction of Station Road and Cemetery Lane at
Wymondham, the road accident in which the plaintiff, Mr. Stovin, was
grievously injured would not have happened. Indeed, steps short of actually
serving a section 79 notice would have sufficed.
The council knew this was an exceedingly dangerous junction.
Visibility was very limited for vehicles turning right out of Cemetery Lane
into Station Road, and accidents had occurred in 1976 and 1982. The
necessary remedial work was relatively straightforward and could be done
quickly, cheaply and effectively. The work would cost less than £1,000, and
money was available.
The council decided to act. On 14 January 1988 the council wrote to
British Rail, the owner of the land, suggesting that part of the bank should be
removed in order to improve visibility. The council would do the work at its
own expense. That was eleven months before the accident. A site meeting
took place early in February. The representatives of British Rail agreed to
seek the necessary internal approval. They did not get in touch again, and the
council did not send a reminder. The council official handling the matter was
moved to other duties, and the matter was allowed to go to sleep. A third
accident happened on 6 March.
On 11 December 1988 as the plaintiff rode along Station Road, he was
knocked off his motorcycle by a car turning right out of Cemetery Lane.
Judge Crawford Q.C., sitting as a judge of the High Court, held the car driver
was 70 per cent. to blame for the accident, and Norfolk Council 30 per cent.
The Court of Appeal, comprising Nourse, Kennedy and Roch L.JJ., dismissed
the council's appeal: [1994] 1 W.L.R. 1124. On this further appeal to your
Lordships' House, the question is whether the council owed the plaintiff any
-2common law duty in respect of its failure to take action. That is the sole
question. The council does not seek to disturb the judge's conclusion that if
the duty existed, the council was in breach. In other words, the council failed
to act as a reasonable authority in the circumstances. The council need not
have exercised its power under section 79 to compel British Rail to alter a
corner of its land. If the site meeting had been followed up, British Rail
would have given consent, and the council itself would have completed the
work before the date of the accident.
Liability for omissions
The starting point is that the council did not create the source of
danger. This is not a case of a highway authority carrying out road works
carelessly and thereby creating a hazard. In the present case the council
cannot be liable unless it was under a duty requiring it to act. If the plaintiff
is to succeed the council must have owed him a duty to exercise its powers
regarding a danger known to it but not created by it.
The distinction between liability for acts and liability for omissions is
well known. It is not free from controversy. In some cases the distinction is
not clear cut. The categorisation may depend upon how broadly one looks
when deciding whether the omission is a "pure" omission or is part of a larger
course of activity set in motion by the defendant. Failure to apply the
handbrake when parking a vehicle is the classic illustration of the latter. Then
the omission is the element which makes the activity negligent. Dorset Yacht
Co. Ltd. v. Home Office [1970] A.C. 1004 is an instance where the distinction
was not so easy to apply.
Despite the difficulties, the distinction is fundamentally sound in this
area of the law. The distinction is based on a recognition that it is one matter
to require a person to take care if he embarks on a course of conduct which
may harm others. He must take care not to create a risk of danger. It is
another matter to require a person, who is doing nothing, to take positive
action to protect others from harm for which he was not responsible, and to
hold him liable in damages if he fails to do so.
The law has long recognised that liability can arise more readily in the
first situation than the second. This is reasonable. In the second situation a
person is being compelled to act, and to act for the benefit of another. There
must be some special justification for imposing an obligation of this character.
Compulsory altruism needs more justification than an obligation not to create
dangers to others when acting for one's own purposes.
There is no difficulty over categorisation in the present case. The
council did not bring about the dangerous configuration and poor visibility at
the road junction. The question is whether it was in breach of a common law
duty by carelessly failing to remove this source of danger.
-3Common law duties to take positive action
Common law obligations to take positive action arise mainly in contract
and fiduciary relationships. They may also arise in tort. Familiar instances
are parent and child, employer and employee, school and pupil. The
established categories are useful because they embrace common types of
situation, but these categories are no more closed than any other categories of
negligence. Their unifying thread is some circumstance, or combination of
circumstances, which makes it fair and reasonable that one person should be
required to take reasonable steps for another's protection or benefit.
Perhaps the established category nearest to the present case comprises
occupiers of land and their neighbours. An occupier is under a common law
duty to take positive action to remove or reduce hazards to his neighbours,
even though the hazard is not one the occupier brought about. He must take
reasonable steps to this end, for the benefit of his neighbours: see Goldman
v. Hargrave [1967] 1 A.C. 645. If an occupier's tree is struck by lightning
and catches fire, he must take reasonable steps to prevent the fire spreading.
He must act as would a reasonable occupier in his position.
In this situation a combination of features is present: foreseeability of
damage or injury if preventive steps are not taken; control by the occupier of
a known source of danger; dependence, or vulnerability, of the neighbour; and
the prospect of damage or injury out of all proportion to the preventive steps
required.
Even this combination is not enough. The classic example of the
absence of a legal duty to take positive action is where a grown person stands
by while a young child drowns in a shallow pool. Another instance is where
a person watches a nearby pedestrian stroll into the path of an oncoming
vehicle. In both instances the callous bystander can foresee serious injury if
he does nothing. He does not control the source of the danger, but he has
control of the means to avert a dreadful accident. The child or pedestrian is
dependent on the bystander: the child is unable to save himself, and the
pedestrian is unaware of his danger. The prospective injury is out of all
proportion to the burden imposed by having to take preventive steps. All that
would be called for is the simplest exertion or a warning shout.
Despite this, the recognised legal position is that the bystander does not
owe the drowning child or the heedless pedestrian a duty to take steps to save
him. Something more is required than being a bystander. There must be some
additional reason why it is fair and reasonable that one person should be
regarded as his brother's keeper and have legal obligations in that regard.
When this additional reason exists, there is said to be sufficient proximity.
That is the customary label. In cases involving the use of land, proximity is
found in the fact of occupation. The right to occupy can reasonably be
regarded as carrying obligations as well as rights.
-4Omissions and proximity
Norfolk Council was more than a bystander. The council had a
statutory power to remove this source of danger, although it was not under a
statutory duty to do so. Before 1978 the accepted law was that the council
could be under no common law liability for failing to act. A simple failure
to exercise a statutory power did not give rise to a common law claim for
damages: see East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74.
The decision in Anns v. Merton London Borough Council [1978] A.C. 728
liberated the law from this unacceptable yoke. This was the great contribution
Anns made to the development of the common law.
However, as with Hedley Byrne & Co Ltd v. Heller & Partners Ltd.
[1964] A.C. 465, another notable development in the law of negligence, so
with Anns: a coherent, principled control mechanism has to be found for
limiting this new area of potential liability. The powers conferred on public
authorities permeate so many fields that a private law duty in all cases,
sounding in damages, would be no more acceptable than the opposite extreme.
Considerable caution is needed lest a welcome development do more harm that
good.
In Anns v. Merton London Borough Council [1978] A.C. 728
Lord Wilberforce propounded a two stage test for the existence of a duty.
This test is now generally regarded with less favour than the familiar tripartite
formulation subsequently espoused in Caparo Industries Plc. v. Dickman
[1990] 2 A.C. 605, 617, 618: (1) foreseeability of loss, (2) proximity and (3)
fairness, justice and reasonableness. The difference is perhaps more a
difference of presentation and emphasis than substance. Clearly,
foreseeability of loss is by itself an insufficient foundation for a duty to take
positive action. Close attention to the language of Lord Wilberforce at
pp. 751-752, with its reference to a sufficient relationship of proximity or
neighbourhood, shows that he regarded proximity as an integral requirement:
see also McLoughlin v. O'Brian [1983] A.C. 410, 420, 421, per
Lord Wilberforce, and Yuen Kun Yeu v. Attorney-General of Hong Kong
[1988] A.C. 175, 191, per Lord Keith of Kinkel.
The Caparo tripartite test elevates proximity to the dignity of a
separate heading. This formulation tends to suggest that proximity is a
separate ingredient, distinct from fairness and reasonableness, and capable of
being identified by some other criteria. This is not so. Proximity is a
slippery word. Proximity is not legal shorthand for a concept with its own,
objectively identifiable characteristics. Proximity is convenient shorthand for
a relationship between two parties which makes it fair and reasonable one
should owe the other a duty of care. This is only another way of saying that
when assessing the requirements of fairness and reasonableness regard must
be had to the relationship of the parties. As McLachlin J. said in the Supreme
-5Court of Canada, in Norsk Pacific Steamship Co. Ltd. v. Canadian National
Railway Co. [1992] 1 S.C.R. 1021, 1152:
". . .the concept of proximity may be seen as an umbrella,
covering a number of disparate circumstances in which the relationship
between the parties is so close that it is just and reasonable to permit
recovery in tort."
Similarly, in his valuable exposition in Sutherland Shire Council v.
Heyman (1985) 157 C.L.R. 424, 496, Deane J. in the High Court of Australia
observed that Lord Atkin's notion of proximity in Donoghue v. Stevenson
[1932] A.C. 562 "involved both an evaluation of the closeness of the
relationship and a judgment of the legal consequences of that evaluation."
Deane J. added, at p. 498:
"Given the general circumstances of a case in a new or
developing area of the law of negligence, the question what (if any)
combination or combinations of factors will satisfy the requirement of
proximity is a question of law to be resolved by the processes of legal
reasoning, induction and deduction ... the identification of the content
of that requirement hi such an area should not be either ostensibly or
actually divorced from notions of what is 'fair and reasonable' ... or
from the considerations of public policy which underlie and enlighten
the existence and content of the requirement."
Despite this, the pithy tripartite formulation has advantages. The
relationship between the parties is an important ingredient in the overall
assessment. The tripartite test is useful in focusing attention specifically on
this feature and also in clearly separating this feature from foreseeability of
damage. But the application of the same tripartite test, both to a duty to take
care when acting and a duty to take positive action, should not be allowed to
mask the difference between the two duties. As already seen, the test of
fairness and reasonableness is more difficult to satisfy with a duty to act. This
is especially so when the subject matter is potential financial loss, rather than
physical injury or damage. The reluctance to impose a duty to act is even
greater when the loss threatened is financial.
The basic test of fair and reasonable is itself open to criticism for
vagueness. Indeed, it as an uncomfortably loose test for the existence of a
legal duty. But no better or more precise formulation has emerged so far, and
a body of case law is beginning to give the necessary further guidance as
courts identify the factors indicative of the presence or absence of a duty.
A duty to act, and finite resources
I must mention one further feature of common law liability for
omissions before turning in more detail to the position of public authorities.
Liability for omissions gives rise to a problem not present with liability for
-6careless acts. He who wishes to act must act carefully or not at all. A
producer of ginger beer must adopt a safe manufacturing process. If this
would be uneconomic, he ought not to carry on the business. With liability
for omissions, however, a person is not offered a choice. The law compels
him to act when left to himself he might do nothing.
This gives rise to a difficulty if positive action requires expenditure.
The law requires him to act reasonably. But, as Lord Wilberforce observed
in Goldman v. Hargrave [1967] 1 A.C. 645, 663, what is reasonable to one
man may be very unreasonable or ruinous to another.
The solution adopted is to have regard to the circumstances of the
individual. He must act as would a reasonable person in his position. The
standard of reasonableness is to be measured by what may reasonably be
expected of the defendant in his individual circumstances. Where action calls
for expenditure, the court if necessary will have regard to the financial
resources of the defendant. The law does not always shrink away from such
an investigation and regard itself as unable ever to make an assessment of
competing demands for money.
Public authorities and liability for omissions
The liability of public authorities for negligence in carrying out
statutory responsibilities is a knotty problem. The decision of this House in
Anns v. Merton London Borough Council [1978] A.C. 728 articulated a
response to growing unease over the inability of public law, in some
instances, to afford a remedy matching the wrong. Individuals may suffer loss
through the carelessness of public bodies in carrying out their statutory
functions. Sometimes this evokes an intuitive response that the authority
ought to make good the loss. The damnified individual was entitled to expect
better from a public body. Leaving the loss to lie where it falls is not always
an acceptable outcome. The authority did not create the loss, but it failed to
discharge its statutory responsibilities with reasonable care. Had it behaved
properly, the loss would not have occurred.
Expressed in traditional tort terms, the loss in this type of case arises
from a pure omission. Any analysis must recognise this. But the omission
may also constitute a breach of the authority's public law obligations. As will
be seen, the present case is an example of this, even though the relevant
statutory function was expressed as a statutory power and not a statutory duty.
When this is so, the question is not whether the authority was under a legal
duty to take action. The authority was already so obliged, as a matter of
public law. The question, rather, is what should be the remedy for the
breach.
Anns showed that a remedy in the form of an award of damages is
possible without confusing the uneasy divide between public and private law.
The common law is still sufficiently adaptable. The common law has long
-7recognised that in some situations there may be a duty to act. So a concurrent
common law duty can carry the strain, without distortion of principle.
The Anns principle has to cope with a complication absent from other
landmark decisions such as Donoghue v. Stevenson [1932] A.C. 562 and
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465.
Typically, although not necessarily, the effect of an application of the Anns
principle will be to bring home against an authority a liability for damages for
failure to perform public law obligations created by statute. Thus in Anns
cases, unlike in Donoghue v. Stevenson and Hedley Byrne, it is necessary to
consider the legislative intention. Resort to Anns is not required when
Parliament created a statutory duty and also, expressly or impliedly, a cause
of action for breach of the duty. The problem only arises outside the area
where Parliament has willed that the individual shall have a remedy in
damages. This gives rise to the difficulty of how much weight should be
accorded the fact that, when creating the statutory function, the legislature
held back from attaching a private law cause of action. The law must
recognise the need to protect the public exchequer as well as private interests.
It is essentially on this latter point that so many divergent views have
been expressed, mainly in articles and textbooks. There is general agreement
that the law is unsettled, with a different judicial emphasis between the
common law countries. There is no consensus on what the law should be:
see, for instance, Arrowsmith, Civil Liability, 176-185; S.H. Bailey and M.J.
Bowman, "The Policy/Operation Dichotomy - A Cuckoo in the Nest" [1986]
C.L.J. 430; Sir Gerard Brennan, "Liability in Negligence of Public
Authorities: The Divergent Views" (1990) 48 Advocate 842; Buckley, The
Modern Law of Negligence, 2nd ed. (1993), pp. 229-247; and Craig,
Administrative Law, 3rd ed. (1994), pp. 618-632, and P.P. Craig,
"Negligence in the Exercise of a Statutory Power" (1978) 94 L.Q.R. 428; de
Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed.
(1995), pp. 774-782; J.J. Doyle Q.C., Solicitor-General for South Australia,
"The Liability of Public Authorities" (1994) 2 Tort L.Rev. 189; Fleming, The
Law of Torts, 8th ed. (1992), pp. 146-159; Hogg, 17 Monash U.L.R. 285;
Justice David Malcolm, "The Liability and Responsibility of Local
Government Authorities: Trends and Tendencies" Austr B.R. 209; Hon. John
Sopinka, Justice, Supreme Court of Canada, "The Liability of Public
Authorities: Drawing the Line" (1993) 1 Tort L.Rev. 123; Stephen Todd,
"The Negligence Liability of Public Authorities: Divergence in the Common
Law" (1986) 102 L.Q.R. 370; Smith and Peter Burns, "Donoghue v.
Stevenson - The Not So Golden Anniversary" (1983) 46 M.L.R. 147; Wade
and Forsyth, Administrative Law, 7th ed., (1994), pp. 771-783; and Winfield
and Jolowicz, Tort, 14th ed., (1994), pp. 78-90, 102-103.
-8The statutory framework
Against this background I must now map the route which as a matter
of legal analysis I believe is applicable in the present case. Public authorities
discharging statutory functions operate within a statutory framework. Since
the will of the legislature is paramount in this field, the common law should
not impose a concurrent duty inconsistent with this framework. A common
law duty must not be inconsistent with the performance by the authority of its
statutory duties and powers in the manner intended by Parliament, or contrary
in any other way to the presumed legislative intention.
In some respects the typical statutory framework makes the step to a
common law duty to act easier with public authorities than individuals.
Unlike an individual, a public authority is not an indifferent onlooker.
Parliament confers powers on public authorities for a purpose. An authority
is entrusted and charged with responsibilities, for the public good. The
powers are intended to be exercised in a suitable case. Compelling a public
authority to act does not represent an intrusion into private affairs in the same
way as when a private individual is compelled to act.
The matter goes much further. Sometimes a concurrent common law
duty would not impose any additional burden, in the sense of requiring an
authority to act differently from the course already required by its public law
obligations. In such cases a major impediment to the existence of a common
law duty to act is not present. This calls for elaboration.
The scope of a common law duty to take positive action, as much as
any other common law duty of care, depends upon the circumstances giving
rise to the duty. A concurrent common law duty cannot require the authority
to act outside its statutory powers. But the superimposed common law duty
may sometimes curtail the freedom of an authority's actions within its powers.
There may have been some dealing between the authority and the plaintiff, or
some other special circumstance, from which the law will properly conclude
that the authority has assumed an obligation to the plaintiff to act in a
particular way within the scope of its powers. An example of this is
Parramatta City Council v, Lutz (1988) 12 N.S.W.L.R. 293, where the
council told the plaintiff it would be carrying out an order for the demolition
of adjoining derelict property. Or the special circumstance may be more
general, as where an authority has habitually exercised a power and, in
consequence, a person or class of persons has to the knowledge of the
authority reasonably relied on the authority continuing to follow its normal
practice.
The present case is not of this kind. The plaintiff was in no different
position from any other road user on any public road. Nothing had occurred
to impose on the council an obligation to act otherwise than in conformity
with its public law obligations. That is the first step.
-9The next step is to note that the council's existing public law
obligations required the council to attain the standards expected of any
reasonable highway authority in the circumstances. A statutory discretion
cannot properly be exercised in an unreasonable manner, that is, in a way no
sensible authority with a proper appreciation of its responsibilities would act:
see Secretary of State for Education and Science v. Tameside Metropolitan
Borough Council [1977] A.C. 1014, 1064, per Lord Diplock.
Thus, and this is the third step, if there were a common law obligation
in the present case, sounding in damages, the extent of the obligation would
march hand in hand with the authority's public law obligations. This is a
cardinal feature of the present case. The council's public law obligation was
to act as a reasonable authority. The common law obligation would be to the
same effect.
The final step, and this goes to breach, is to note that Norfolk Council
acted in a way no reasonable authority would have done. If there is a
common law duty, breach of the duty is not disputed. With knowledge of the
danger the council decided to act. It then failed to proceed with reasonable
diligence. The failure to proceed was not an exercise of discretion by the
council. The council did not change its mind. The matter was overlooked.
Given the decision to act, the only proper course open to the council was to
proceed to implement the decision. Had the council acted as any reasonable
authority would, that is what would have happened. The council failed to
fulfil its public law obligations just as much as if it were in breach of a
statutory duty.
Hence the conclusion, that a concurrent common law duty would not
impose on the council any greater obligation to act than the obligation already
imposed by its public law duties. The common law duty would impose, not
a duty to act differently, but a liability to pay damages if the council failed to
act as it should. This is the consequence which considerations of proximity
must especially address in the present case. Was the relationship between the
parties such that it is fair and reasonable for the council to be liable in
damages for failing to behave in a way which merely corresponds to its public
law obligations? In this type of case, therefore, the reluctance of the common
law to impose a duty to act is not in point. What is in point, in effect though
not in legal form, is an obligation to pay damages for breach of public law
obligations.
This leads naturally to a further feature of the typical statutory
framework. This feature points away from public bodies being subject to
concurrent common law obligations. When conferring the statutory functions
Parliament stopped short of imposing a duty in favour of the plaintiff. This
is so when there is a statutory duty not giving rise to a cause of action for
breach of the duty. This is even more marked when Parliament conferred a
power. Without more it would not be reasonable for the common law to
- 10 impose a duty, sounding in damages, which Parliament refrained from
imposing.
For this reason there must be some special circumstance, beyond the
mere existence of the power, rendering it fair and reasonable for the authority
to be subject to a concurrent common law duty sounding in damages. This
special circumstance is the foundation for the concurrent common law duty to
act, owed to a particular person or class of persons. It is the presence of this
additional, special circumstance which imposes the common law duty and also
determines its scope. Viewed in this way there is no inconsistency in
principle between the statutory framework set up by Parliament and a parallel
common law duty.
Statutory powers and proximity
What will constitute a special circumstance, and in combination with
all the other circumstances amount to sufficient proximity, defies definition
and exhaustive categorisation save in the general terms already noted
regarding proximity. The special circumstance must be sufficiently
compelling to overcome the force of the fact that when creating the statutory
function Parliament abstained from creating a cause of action, sounding in
damages, for its breach.
Factors to be taken into account include: the subject matter of the
statute (for instance, the regulatory power in Yuen Kun Keu v. AttorneyGeneral of Hong Kong [1988] A.C. 175,195, was quasi-judicial, with a right
of appeal); the intended purpose of the statutory duty or power (in Governors
of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985]
A.C. 210 and Murphy v. Brentwood District Council [1991] 1 A.C. 398, 408,
public health measures were not intended to safeguard owners of buildings
against financial loss); whether a concurrent common law duty might inhibit
the proper and expeditious discharge of the statutory functions (such as the
protection of children at risk, in X (minors) v. Bedfordshire County Council
[1995] 2 A.C. 633, 749-751); the nature of the loss (whether physical injury
or purely financial); the ability of the plaintiff to protect himself (in Just v.
British Columbia (1989) 64 D.L.R. (4th) 689 a road user was injured by a
rock falling onto his car); the adequacy of the public law remedies (Rowling
v. Takaro Properties Ltd. [1988] A.C. 473, 501-502, and Jones v. Department
of Employment [1989] Q.B. 1, 22, 24-25); and the presence or absence of a
particular reason why the plaintiff was relying or dependent on the authority
(as in Invercargill City Council v. Hamlin [1996] 2 W.L.R. 367, and see the
New Zealand Court of Appeal at [1994] 3 N.Z.L.R. 513, 519, 524-525, and
530). This list is by no means exhaustive, and each case will turn upon the
particular combination of factors present or absent.
Reliance calls for special mention. By reliance I mean that the
authority can reasonably foresee that the plaintiff will reasonably rely on the
- 11 authority acting in a particular way. Reliance is a useful aid here, as in the
field of negligent misstatement, because it leads easily to the conclusion that
the authority can fairly be taken to have assumed responsibility to act in a
particular way. Reliance may be actual, in the case of a particular plaintiff,
or more general, in the sense that persons in the position of the plaintiff may
be expected to act in reliance on the authority exercising its powers. In
Sutherland Shire Council v. Heyman, 157 C.L.R. 424, 464, Mason J. treated
dependence as having equivalent effect in some circumstances:
"... there will be cases in which the plaintiff's reasonable
reliance will arise out of a general dependence on an authority's
performance of its function with due care, without the need for
contributing conduct on the part of a defendant or action to his
detriment on the part of a plaintiff. Reliance or dependence in this
sense is in general the product of the grant (and exercise) of powers
designed to prevent or minimise a risk of personal injury or disability,
recognised by the legislature as being of such magnitude or complexity
that individuals cannot, or may not, take adequate steps for their own
protection. This situation generates on one side (the individual) a
general expectation that the power will be exercised and on the other
side (the authority) a realisation that there is a general reliance or
dependence on its exercise of power. . ."
Reliance, or dependence, may be a sufficient basis but will not always
be so. Everyone is entitled to expect that an authority will behave as a
reasonable authority, in accordance with its public law obligations, but
reliance of this character will usually not be enough. Otherwise a concurrent
common law duty might readily arise in almost every case. Nor, conversely,
is reliance a necessary ingredient in all cases. Proximity cannot be confined
by fixed restraints applicable in all cases.
Some statutory powers, of their nature, are less susceptible to a
concurrent common law duty than others. More is needed by way of a special
circumstance. This does not mean that powers are capable of being assigned
to fixed categories. There are no hard and fast boundary lines here. The
approach, rather, is that as the part played by broad discretionary
considerations in the exercise of the power grows, the less readily will a
common law duty be superimposed, and vice versa. At the discretionary edge
of the spectrum will be powers whose nature and purpose make it difficult to
envisage any likely circumstances where a common law duty, sounding in
damages, could be superimposed. A local authority's powers to decide what
schools there should be, and where, and of what type, may be an example of
this. At the other edge of the spectrum will be powers where comparatively
little extra may be needed to found a common law duty owed to a particular
person or class of persons. A power to remove dangers from public places
must be near this edge of the spectrum. A power to control air safety may be
another example, as in Swanson Estate v. Canada (1991) 80 D.L.R (4th)
741.
- 12 Some decisions since Anns v. Merton London Borough Council [1978]
A.C. 728 have gone further and identified a "no go" area for concurrent
common law duties: see Anns, at p. 754; Sutherland Shire Council v. Heyman,
157 C.L.R. 424, 469, per Mason J.; Rowling v. Takaro Properties Ltd.
[1988] A.C. 473, 501; and X (Minors) v. Bedfordshire County Council [1995]
2 A.C. 633, 738. In practice the two approaches will usually reach the same
conclusion. My preference is for the more open-ended approach. The
exclusionary approach presupposes an identifiable boundary, between policy
and other decisions, corresponding to a perceived impossibility for the court
to handle policy decisions. But the boundary is elusive, because the
distinction is artificial, and an area of blanket immunity seems undesirable and
unnecessary. It is undesirable in principle that in respect of certain types of
decisions the possibility of a concurrent common law duty should be
absolutely barred, whatever the circumstances. An excluded zone is also
unnecessary, because no statutory power is inherently immune from judicial
review. This has not given rise to any insuperable difficulties in public law.
Nor should it with claims in tort if, very exceptionally, a concurrent common
law duty were held to exist in an area of broad policy. Courts are well able
to recognise that reasonable people can reach widely differing conclusions
when making decisions based on social, political or economic grounds: see,
for instance, Reg. v. Secretary of State for the Environment, Ex parte
Nottingham County Council [1986] A.C. 240. Similarly with competing
demands for money. Indeed, the courts have recognised that sometimes it
may be necessary in private law to look into competing demands for available
money. As already noted, this is inherent in the very concept of a common
law duty to take positive action. Thus this feature does not of itself exclude
the existence of a concurrent common law duty.
The Highways Act
I turn to apply these principles to the present case. The Highways Act
1980 provides that the authority for a highway maintainable at public expense
is under a duty to maintain the highway: section 41. The duty is not absolute.
In an action against the authority in respect of damage resulting from failure
to maintain a highway, it is a defence to prove that the authority had taken
such care as was reasonable to secure that the relevant part of the highway
was not dangerous for traffic: section 58.
That concerns the state of repair of the highway itself. A highway may
be dangerous for other reasons. Highway authorities have a panoply of
powers enabling them to deal with dangers, obstructions and inconveniences
arising in many different ways. A projection from a building may be an
obstruction to safe passage. Overhanging hedges or trees may endanger or
obstruct the passage of vehicles or pedestrians. A dead or diseased tree may
be likely to cause danger by falling on the road. Adjoining land may contain
an inadequately fenced source of danger. The forecourt of premises abutting
on a street may be a source of danger. In each instance the highway or other
authority has power to require the owner or occupier of the adjoining land to
- 13 take the necessary action to get rid of the source of danger: see sections 152,
154, 165, and 166. Section 79, with which this appeal is concerned, is
another such power. Sometimes the authority has power to do the work if the
notice is not complied with, sometimes not. Section 79 is an instance of the
latter.
Known dangers and road users
I turn to the crucial question: does a highway authority, aware of a
danger, owe to road users a common law duty to act as would a reasonable
authority in the circumstances, and hence be potentially liable in damages if
it fails to attain this standard?
Built into this question are several features which, in combination,
seem to me to point to the conclusion that the existence of such a duty and
such a liability would indeed be fair and reasonable. First, the subject matter
is physical injury. The existence of a source of danger exposes road users to
a risk of serious, even fatal, injury. Road users, especially those unfamiliar
with the stretch of road, are vulnerable. They are dependent on highway
authorities fulfilling their statutory responsibilities. Second, the authority
knows of the danger. When an authority is aware of a danger it has
knowledge road users may not have. It is aware of a risk of which road users
may be ignorant.
Third, in the present case, had the authority complied with its public
law obligations the danger would have been removed and the accident would
not have happened. In such a case the authority can properly be regarded as
responsible for the accident just as much as if its employees had carried out
roadworks carelessly and thereby created a danger. There is no sensible
distinction between an authority's liability for its workmen in the former
instance and its liability if, in breach of its public law obligations, office staff
fail to do their jobs properly and an avoidable road accident takes place in
consequence.
Fourth, this is an area where Parliament has recognised that public
authorities should be liable in damages for omissions as well as actions. In
1961 Parliament abrogated the old rule which exempted the inhabitants at
large and their successors from liability for non-repair of highways (Highways
(Miscellaneous Provisions) Act 1961). A highway authority is liable in
damages for failing to take reasonable care to keep the highway safe. But no
sound distinction can be drawn between dangers on the highway itself, where
the authority has a statutory duty to act, and other dangers, where there is a
statutory power but not a statutory duty. The distinction would not
correspond to the realities of road safety. On the council's argument a
highway authority would be liable if it carelessly failed to remove a dead tree
fallen onto the road, but not liable if it carelessly failed to act after learning
of a diseased overhanging tree liable to fall at any moment. Such a legalistic
- 14 -
distinction does not commend itself. It would be at variance with ordinary
persons' expectations and perceptions.
Fifth, the purpose of the statutory powers is to protect road users by
enabling highway authorities to remove sources of danger, but public law is
unable to give an effective remedy if a road user is injured as a result of an
authority's breach of its public law obligations. A concurrent common law
duty is needed to fill the gap.
Sixth, a common law duty in the present case would not represent an
incursion into a wholly novel field. As already noted, an occupier owes a
duty to take positive action to protect his neighbours. Until subsumed in
legislation, an occupier also owed common law duties to safeguard those who
come onto his property, whether lawfully or unlawfully. Although a highway
authority does not occupy the highway, there is a certain resemblance. A
highway authority has, and alone has, the capacity to remove what would
otherwise be a source of physical danger to users of property.
Seventh, for the reason given earlier a common law duty would not
impose on the authority any more onerous obligation, so far as its behaviour
is concerned, than its public law obligations. Roch L.J., [1994] 1 W.L.R.
1124, 1140, encapsulated the practical effect:
"[The highway authority's] assessment whether a danger exists,
and, if it does, the extent of that danger and the weight that the danger
should be given against the cost of rendering the highway reasonably
safe and its assessment of the priority to be given to this particular part
of the highway as against other parts of the highway under its
jurisdiction are all matters for the highway authority and its decisions
on such issues will not be easily overturned in the courts."
Finally, and critically, the consequence of a concurrent common law
duty would be that in the event of a breach the loss, so far as measurable in
terms of money, would fall on the highway authority or, if insured, on
highway authorities generally. Sometimes an injured road user, whether
driver or passenger or pedestrian, has a claim against an insured road user.
This is so in the present case. Then it may be debatable whether there is
anything to be gained, any social utility, in shifting the financial loss from
road users to a highway authority. But there can be no room for doubt when
the injured road user has no such claim. This may well happen. Then it does
seem eminently fair and reasonable that the loss should fall on the highway
authority and not the hapless road user. And if the existence of a duty of care
in all cases, in the shape of a duty to act as a reasonable authority, has a
salutary effect on tightening administrative procedures and avoiding another
needless road tragedy, this must be in the public interest.
In my view these factors, taken together, constitute special
circumstances of sufficient weight for the crucial question to be answered yes.
- 15 There is here sufficient proximity. I reserve my view on what the position
would be if an authority did not know, but ought to have known, of the
existence of a danger.
I must mention one last matter as a footnote. The council contended
that a common law duty would achieve little or nothing. Highway authorities
would qualify their decisions to act, lest they expose themselves more readily
to damages claims. This is not an impressive argument. Public authorities
are responsible bodies which normally discharge their duties conscientiously
and carefully. There is no reason for thinking they would indulge in artifice
to conceal their true decisions. Further, the common law duty does not stem
from the decision to act. The authority's decision to act does not create a
common law duty where otherwise none existed. Where there is a decision
to act, the decision fixes the starting point of the inquiry into whether there
has been a breach of the common law duty, viz, a failure to act as a
reasonable authority. It is the starting point, because it is only afterwards
there was any failure to act. If there was no decision to act, the inquiry
would start at an earlier stage.
I would dismiss this appeal.
LORD HOFFMANN
My Lords,
1. The Accident
Late at night in December 1988, the plaintiff Mr. Stovin was riding his
motorcycle along Station Road, Wymondham. A car driven by the defendant
Mrs Wise emerged from a junction into his path. He was unable to stop in
time and there was a collision in which he suffered serious injuries.
His Honour Judge Crawford Q.C. found that Mrs Wise had not been
keeping a proper look out and was 70 per cent. to blame for the accident. He
attributed the other 30 per cent. of liability to the Norfolk County Council,
which Mrs Wise had joined as third party. The Council was the local
highway authority. The judge found that it had known that the junction was
dangerous and had been negligent in not taking steps to make it safer.
2. The Junction
The junction was certainly a hazard to traffic. Cemetery Road, along
which Mrs Wise had been driving, joined Station Road at an acute angle. A
driver who, like Mrs Wise, wanted to turn right, had to make a turn of about
150 degrees across the traffic coming from her right. What made matters
- 16 worse was that the view to the right was obstructed by a bank of earth topped
by a fence. Mrs Wise could not see what was coming, apart from light
thrown forward by approaching headlights, until she had actually nosed out
into Station Road.
There had been accidents at the junction in 1976, 1982 and in March
1988, when someone coming out of Cemetery Road had collided with a police
car. Three accidents in twelve years was not however enough to give the
junction the status of a "cluster site" or accident black spot in the Council's
computerised records. That needed at least five personal injury accidents
within three years. It did not therefore merit special attention under the
Council's policy for dealing with hazardous stretches of road. But the
Wymondham Road Safety Committee had taken up the matter about a year
before Mr. Stovin's accident. In December 1987 the Committee approached
British Rail, which owned the land upon which stood the obstructing bank and
fence. British Rail's Area Civil Engineer wrote to Mr. Longhurst, the
Council's Divisional Surveyor, suggesting that the junction should be
realigned. Mr. Longhurst was in charge of road maintenance in south
Norfolk. His traffic movement expert, Mr. Deller, whom he sent to inspect,
thought that the best solution was to remove the bank. Mr. Longhurst
accepted his advice and wrote to British Rail, asking permission to do the
work and offering to pay the cost.
Unfortunately British Rail did not answer the letter and nothing was
done to follow it up. A month or two later Mr. Deller was transferred to
other work. By the time of Mr. Stovin's accident, nothing had happened.
3. The Trial
The question of law at the trial was whether the Council, as highway
authority, owed a duty to users of the highway in respect of the safety of the
junction. At first Mr. Stovin relied primarily upon the Council's statutory
duty to maintain the highway: see section 41 of the Highways Act 1980. But
the judge rejected this claim on the ground that the bank was not part of the
highway. It was on land adjoining the highway. This decision was affirmed
by the Court of Appeal and is not challenged before this House.
The alternative claim was that the Council owed Mr. Stovin a duty of
care at common law. The judge said that a "neighbour relationship" as
described by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 existed
because the Council, as highway authority, should have had users of the
highway in contemplation as affected by its operations and knew that the layout of the junction was dangerous. He then went on to consider whether there
was "proximity" between the highway authority and Mr. Stovin. He took into
account that the kind of damage which should have been foreseen was physical
injury. He was not therefore troubled by any of the problems about the duty
of care in respect of economic loss which have so perplexed the courts over
the past few decades. The junction was in his view exceptionally dangerous
- 17 and the Council through its officers actually knew of the risk. In addition, the
Council was a public authority. He said, quoting Du Parq L.J. in Kent v.
East Suffolk Rivers Catchment Board [1940] 1 K.B. 319, 338, that it owed a
duty to the public to strike a "balance between the rival claims of efficiency
and thrift." In this case, he said, there was no question of choosing thrift
because in his view a decision to improve the junction had already been taken.
Having found that the Council owed Mr. Stovin a duty of care, the judge had
no difficulty in finding that there had been a breach. Mr. Deller had said that
he had not regarded the matter as urgent. But the judge held that he had been
mistaken. He was not told of the accident with the police car in March 1988.
The judge found that if he had heard about it, he would have acted with
greater despatch. But for his transfer to other duties, the work would have
been implemented before Mr. Stovin's accident. It was a breach of duty for
the Council not to have done it.
4. Acts and omissions.
The judge made no express mention of the fact that the complaint
against the Council was not about anything which it had done to make the
highway dangerous but about its omission to make it safer. Omissions, like
economic loss, are notoriously a category of conduct in which Lord Atkin's
generalisation in Donoghue v. Stevenson [1932] A.C. 562 offers limited help.
In the High Court of Australia in Hargrave v. Goldman (1963) 110 C.L.R.
40, 65-66, Windeyer J. drew attention to the irony in Lord Atkin's allusion,
in formulating his "neighbour" test, to the parable of the Good Samaritan
([1932] A.C. 562, 580):
"The priest and the Levite, when they saw the wounded man by the
road, passed by on the other side. He obviously was a person whom
they had in contemplation and who was closely and directly affected
by their action. Yet the common law does not require a man to act as
the Samaritan did."
A similar point was made by Lord Diplock in Dorset Yacht Co. Ltd. v. Home
Office [1970] A.C. 1004, 1060. There are sound reasons why omissions
require different treatment from positive conduct. It is one thing for the law
to say that a person who undertakes some activity shall take reasonable care
not to cause damage to others. It is another thing for the law to require that
a person who is doing nothing in particular shall take steps to prevent another
from suffering harm from the acts of third parties (like Mrs Wise) or natural
causes. One can put the matter in political, moral or economic terms. In
political terms it is less of an invasion of an individual's freedom for the law
to require him to consider the safety of others in his actions than to impose
upon him a duty to rescue or protect. A moral version of this point may be
called the "why pick on me?" argument. A duty to prevent harm to others or
to render assistance to a person in danger or distress may apply to a large and
indeterminate class of people who happen to be able to do something. Why
should one be held liable rather than another? In economic terms, the
- 18 efficient allocation of resources usually requires an activity should bear its
own costs. If it benefits from being able to impose some of its costs on other
people (what economists call "externalities,") the market is distorted because
the activity appears cheaper than it really is. So liability to pay compensation
for loss caused by negligent conduct acts as a deterrent against increasing the
cost of the activity to the community and reduces externalities. But there is
no similar justification for requiring a person who is not doing anything to
spend money on behalf of someone else. Except in special cases (such as
marine salvage) English law does not reward someone who voluntarily confers
a benefit on another. So there must be some special reason why he should
have to put his hand in his pocket.
In Hargrove v. Goldman, 110 C.L.R. 40, 66 Windeyer J. said:
"The trend of judicial development in the law of negligence has
been ... to found a duty to take care either in some task undertaken,
or in the ownership, occupation or use of land or chattels."
There may be a duty to act if one has undertaken to do so or induced
a person to rely upon one doing so. Or the ownership or occupation of land
may give rise to a duty to take positive steps for the benefit of those who
come upon the land and sometimes for the benefit of neighbours. In Hargrove
v. Goldman the High Court of Australia held that the owner and occupier of
a 600 acre grazing property in Western Australia had a duty to take reasonable
steps to extinguish a fire, which had been started by lightning striking a tree
on his land, so as to prevent it from spreading to his neighbour's land. This
is a case in which the limited class of persons who owe the duty (neighbours)
is easily identified and the political, moral and economic arguments which I
have mentioned are countered by the fact that the duties are mutual. One
cannot tell where the lightning may strike and it is therefore both fair and
efficient to impose upon each landowner a duty to have regard to the interests
of his neighbour. In giving the advice of the Privy Council affirming the
decision (Goldman v. Hargrove [1967] 1 A.C. 645) Lord Wilberforce
underlined the exceptional nature of the liability when he pointed out that the
question of whether the landowner had acted reasonably should be judged by
reference to the resources he actually had at his disposal and not by some
general or objective standard. This is quite different from the duty owed by
a person who undertakes a positive activity which carries the risk of causing
damage to others. If he does not have the resources to take such steps as are
objectively reasonable to prevent such damage, he should not undertake that
activity at all.
5. Omissions in the Court of Appeal
The Court of Appeal did advert to the question of omissions. The
main ground upon which they affirmed the judge's decision was that the
position of the Council as a public authority gave rise to a common law duty
in the circumstances to safeguard users of the junction from harm. I shall
- 19 -
have to return to this central question at some length. But Kennedy LJ. and
Roch L.J. (with whom Nourse LJ. agreed) each made additional points
independent of the public nature of the highway authority. Kennedy L.J. said
([1994] 1 W.L.R. 1124, 1138) that the case was not one of pure omission:
"Here the highway authority did not simply fail to act. It decided
positively to proceed by seeking agreement from British Rail, and its
failure to pursue that course is not an omission on which it can rely to
escape liability, any more than a car driver could escape liability
simply because his breach of duty consisted in a failure to apply the
brakes."
I do not find this analogy convincing. Of course it is true that the
conditions necessary to bring about an event always consist of a combination
of acts and omissions. Mr. Stovin's accident was caused by the fact that Mrs
Wise drove out into Station Road and omitted to keep a proper look-out. But
this does not mean that the distinction between acts and omissions is
meaningless or illogical. One must have regard to the purpose of the
distinction as it is used in the law of negligence, which is to distinguish
between regulating the way in which an activity may be conducted and
imposing a duty to act upon a person who is not carrying on any relevant
activity. To hold the defendant liable for an act, rather than an omission, it
is therefore necessary to be able to say, according to common sense principles
of causation, that the damage was caused by something which the defendant
did. If I am driving at 50 miles an hour and fail to apply the brakes, the
motorist with whom I collide can plausibly say that the damage was caused by
my driving into him at 50 miles an hour. But Mr. Stovin's injuries were not
caused by the negotiations between the Council and British Rail or anything
else which the Council did. So far as the Council was held responsible, it was
because it had done nothing to improve the visibility at the junction.
Roch L.J. made a different point. Accepting that the alleged breach
of duty was an omission, he drew an analogy between the position of the
highway authority and an occupier of premises in relation to visitors coming
upon his land. Occupation of premises is, as was said in Hargrave v.
Goldman, 110 C.L.R. 40, one of the exceptional grounds upon which there
may be a duty to take positive steps to protect others from harm. Therefore
Roch L.J. thought that the highway authority should be equally liable. But an
occupier can ordinarily limit his liability by deciding whom he will allow to
come upon his land. He has a limited duty to trespassers and can take steps
to keep them out. An occupier of land over which there is a public right of
way cannot stop anyone from using it. So in McGeown v. Northern Ireland
Housing Executive [1995] 1 A.C. 233 this House decided that an occupier of
land over which there is a public right of way owes no duty to take reasonable
steps to make it safe for members of the public who use it. Because he has
no choice as to whether to allow them upon his land or not he should not be
required to spend money for their benefit. Lord Keith of Kinkel, at p. 243:
- 20 "Rights of way pass over many different types of terrain, and it would
place an impossible burden upon landowners if they not only had to
submit to the passage over them of anyone who might choose to
exercise the right but also were under a duty to maintain them in a safe
condition."
It therefore seems clear that if Station Road and Cemetery Road had been
highways over private land which happened to be owned and occupied by the
Norfolk County Council instead of being repairable at the public expense,
there would have been no liability. The analogy of an occupier is therefore
insufficient for the purpose of imposing liability.
6. Public authorities.
The argument that the Council had a positive duty to take action giving
rise to a claim for compensation in tort must therefore depend, as the judge
and the Court of Appeal recognised, upon the public nature of its powers,
duties and funding. The argument is that while it may be unreasonable to
expect a private landowner to spend money for the benefit of strangers who
have the right to cross his land, the very purpose of the existence of a public
authority like the Council is to spend its resources on making the roads
convenient and safe. For that purpose it has a large battery of powers in the
Highways Act 1980. These do not actually include a power which would have
enabled the Council to go upon the land of British Rail and remove the bank
of earth. But there is power under section 79 to serve a notice requiring the
bank to be removed. The power is conferred for the purpose of "the
prevention of danger arising from obstruction to the view of persons using the
highway." Although the allegation is not that the Council failed to use this
power (it probably would not have been necessary to do so), its existence
shows that one of the purposes for which Parliament contemplated that the
highway authority would spend its money was the removal of exactly the kind
of obstructions which caused the accident in this case.
It is certainly true that some of the arguments against liability for
omissions do not apply to public bodies like a highway authority. There is no
"why pick on me?" argument: as Kennedy L.J. said, at p. 1139, the highway
authority alone had the financial and physical resources, as well as the legal
powers, to eliminate the hazard. But this does not mean that the distinction
between acts and omissions is irrelevant to the duties of a public body or that
there are not other arguments, peculiar to public bodies, which may negative
the existence of a duty of care.
(a) Negligent conduct in the exercise of statutory powers.
Since Mersey Docks and Harbour Board Trustees v. Gibbs (1866) L.R.
1 H.L. 93 it has been clear law that in the absence of express statutory
authority, a public body is in principle liable for torts in the same way as a
private person. But its statutory powers or duties may restrict its liability.
- 21 For example, it may be authorised to do something which necessarily involves
committing what would otherwise be a tort. In such a case it will not be
liable: Allen v. Gulf Oil Refining Ltd. [1981] A.C. 1001. Or it may have
discretionary powers which enable it to do things to achieve a statutory
purpose notwithstanding that they involve a foreseeable risk of damage to
others. In such a case, a bona fide exercise of the discretion will not attract
liability: X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 and
Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004.
In the case of positive acts, therefore, the liability of a public authority
in tort is in principle the same as that of a private person but may be restricted
by its statutory powers and duties. The argument in the present case, however,
is that whereas a private person would have owed no duty of care in respect
of an omission to remove the hazard at the junction, the duty of the highway
authority is enlarged by virtue of its statutory powers. The existence of the
statutory powers is said to create a "proximity" between the highway authority
and the highway user which would not otherwise exist.
(b) Negligent omission to use statutory powers.
Until the decision of this House in Anns v. Merton London Borough
Council [1978] A.C. 728, there was no authority for treating a statutory
power as giving rise to a common law duty of care. Two cases in particular
were thought to be against it. In Sheppard v. Glossop Corporation [1921] 3
K.B. 132 the council had power to light the streets of Glossop. But their
policy was to turn off the lamps at 9 p.m. The plaintiff was injured when he
fell over a retaining wall in the dark after the lamps had been extinguished.
He sued the council for negligence. The Court of Appeal said that the council
owed him no duty of care. Atkin L.J. said, at p. 150:
"[The local authority] is under no duty to act reasonably in deciding
whether it shall exercise its statutory powers or not, or in deciding to
what extent, over what particular area, or for what particular time, it
shall exercise its powers. . . The real complaint of the plaintiff is not
that they caused the danger, but that, the danger being there, if they
had lighted it he would have seen and avoided it."
In East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, the facts of
which are too well known to need repetition, Lord Romer cited Sheppard v.
Glossop Corporation and stated the principle which he said it laid down:
"Where a statutory authority is entrusted with a mere power it cannot
be made liable for any damage sustained by a member of the public by
reason of a failure to exercise that power."
- 22 There are two points to be made about the East Suffolk case by way of
anticipation of what was said about it in Anns. First, Lord Wilberforce said
[1978] A.C. 728, at p. 757 that:
"... only one of their Lordships [Lord Atkin] considered [the case]
in relation to a duty of care at common law. . . I believe that the
conception of a general duty of care, not limited to particular accepted
situations, but extending generally over all relations of sufficient
proximity, and even pervading the sphere of statutory functions of
public bodies, had not at that time become fully recognised."
I must say with great respect that I do not think that this is a fair description
of the reasoning of the majority. As a claim of breach of statutory duty had
expressly been abandoned, it is hard to imagine what the majority could have
thought was the alleged cause of action unless it was breach of a duty of care
at common law. What the majority found impossible was to derive such a duty
from the existence of a statutory power: to turn a statutory "may" into a
common law "ought."
The second point about East Suffolk is that Lord Atkin, who dissented,
does not appear to have founded a duty of care solely upon the existence of
the board's statutory powers. He appears to have held that by going upon the
plaintiffs land to do work which the plaintiff himself could have done (see pp.
91-92) the board accepted a duty to execute the work with due despatch. On
this argument, the only relevance of the board's statutory powers was that it
could have done the work. It had no statutory defence which would not have
been available to a private contractor who had gone upon the land in similar
circumstances. Whether Lord Atkin's reasoning is good or bad, it does not
support the proposition that statutory powers can generate a duty of care
which would not otherwise have existed.
The equally well known case of Dorset Yacht Co. Ltd. v. Home Office
[1970] A.C. 1004 also cast no doubt upon the general principle stated by Lord
Romer in East Suffolk. The only reference to the case is by Viscount
Dilhorne, at p. 1050 G-H, in a dissenting speech. All members of the House
plainly did not regard the case as one in which the alleged breach of duty was
merely an omission to use a statutory power. The negligence was caused by
something which the Borstal officers did, namely to use their statutory powers
of custody to bring the trainees onto the island, where they constituted a
foreseeable risk to boat owners, and then take no care to prevent them from
escaping in the night. The case was therefore prima facie within Mersey
Docks and Harbour Board Trustees v. Gibbs (1866) L.R. 1 H.L. 93, and their
Lordships were concerned only with whether the Crown had a defence on the
grounds that the alleged breach of duty involved the exercise of a statutory
discretion or whether the fact that the damage was caused by the criminal act
of the Borstal trainees negatived the causal link with the Crown's breach of
duty. Both these defences were rejected.
- 23 7. Anns v. Merton Borough Council [1978] A.C. 728.
This brings me to Anns. As this case is the mainstay of Mrs Wise's
argument, I must examine it in some detail. The plaintiff were lessees of flats
in a new block which had been damaged by subsidence caused by inadequate
foundations. They complained that the Council had been negligent in the
exercise of its statutory powers to inspect the foundations of new buildings.
The Council said that it owed no duty to inspect and therefore could not be
liable for negligent inspection. The House rejected this argument. So far as
it held that the Council owed a duty of care in respect of purely economic
loss, the case has been overruled by Murphy v. Brentwood District Council
[1991] 1 A.C. 398. The House left open the question of whether the Council
might have owed a duty in respect of physical injury, although I think it is fair
to say that the tone of their Lordships' remarks on this question was somewhat
sceptical. Nevertheless, it is now necessary to ask whether the reasoning can
support the existence of a duty of care owed by a public authority in respect
of foreseeable physical injury which is founded upon the existence of statutory
powers to safeguard people against that injury.
Lord Wilberforce, who gave the leading speech, first stated the well
known two stage test for the existence of a duty of care. This involves
starting with a prima facie assumption that a duty of care exists if it is
reasonably foreseeable that carelessness may cause damage and then asking
whether there are any considerations which ought to "negative, or to reduce
or limit the scope of the duty or the class of person to whom it is owed or the
damages to which a breach of it may arise." Subsequent decisions in this
House and the Privy Council have preferred to approach the question the other
way round, starting with situations in which a duty has been held to exist and
then asking whether there are considerations of analogy, policy, fairness and
justice for extending it to cover a new situation: see for example Lord Bridge
of Harwich in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 617618. It can be said that, provided that the considerations of policy etc. are
properly analysed, it should not matter whether one starts from one end or the
other.
On the other hand the assumption from which one starts makes a great
deal of difference if the analysis is wrong. The trend of authorities has been
to discourage the assumption that anyone who suffers loss is prima facie
entitled to compensation from a person (preferably insured or a public
authority) whose act or omission can be said to have caused it. The default
position is that he is not.
This does not of course mean that the actual analysis in Anns was
wrong. It has to be considered on its own merits. Lord Wilberforce had to
deal with an argument by the Council which was based upon two propositions.
The first was that if the Council owed no duty to inspect in the first place, it
could be under no liability for having done so negligently. The second relied
upon Lord Romer's principle in East Suffolk [1941] A.C. 74, 97: a public
- 24 authority which has a mere statutory power cannot on that account owe a duty
at common law to exercise the power. Lord Wilberforce did not deny the
first proposition. This, if I may respectfully say so, seems to me to be right.
If the public authority was under no duty to act, either by virtue of its
statutory powers or on any other basis, it cannot be liable because it has acted
but negligently failed to confer a benefit on the plaintiff or to protect him
from loss. The position is of course different if the negligent action of the
public authority has left the plaintiff in a worse position than he would have
been in if the authority had not acted at all. Lord Wilberforce did however
deny the Council's second proposition. His reasoning was as follows, at p.
755:
"I think that this is too crude an argument. It overlooks the fact that
local authorities are public bodies operating under statute with a clear
responsibility for public health in their area. They must, and in fact
do, make their discretionary decisions responsibly and for reasons
which accord with the statutory purpose . . . .If they do not exercise
their discretion in this way they can be challenged in the courts. Thus,
to say that councils are under no duty to inspect, is not a sufficient
statement of the position. They are under a duty to give proper
consideration to the question whether they should inspect or not. Their
immunity from attack, in the event of failure to inspect, in other
words, though great is not absolute. And because it is not absolute,
the necessary premise for the proposition 'if no duty to inspect, then
no duty to take care in inspection' vanishes."
The duty of care at common law is therefore derived from the
council's duty in public law to "give proper consideration to the question
whether they should inspect or not." It is clear, however, that this public law
duty cannot in itself give rise to a duty of care. A public body almost always
has a duty in public law to consider whether it should exercise its powers, but
that does not mean that it necessarily owes a duty of care which may require
that the power should actually be exercised. As Mason J. said in Sutherland
Shire Council v. Heyman (1985) 157 C.L.R. 424, 465:
"... although a public authority may be under a public duty,
enforceable by mandamus, to give proper consideration to the question
whether it should exercise a power, this duty cannot be equated with,
or regarded as a foundation for imposing, a duty of care on the public
authority in relation to the exercise of the power. Mandamus will
compel proper consideration of the authority of its discretion, but that
is all."
A mandamus can require future consideration of the exercise of a
power. But an action for negligence looks back to what the council ought to
have done. Upon what principles can one say of a public authority that not
only did it have a duty in public law to consider the exercise of the power but
that it would thereupon have been under a duty in private law to act, giving
- 25 rise to a claim in compensation against public funds for its failure to do so?
Or as Lord Wilberforce puts it in Anns [1978] A.C. 728, 754:
"The problem which this kind of action creates, is to define the
circumstances in which the law should impose, over and above, or
perhaps alongside, these public law powers and duties, a duty in
private law towards individuals such that they may sue for damages in
a civil court."
The only tool which Anns provides for defining these circumstances is the
distinction between policy and operations. Lord Wilberforce said:
"Most, indeed probably all, statutes relating to public authorities or
public bodies, contain in them a large area of policy. The courts call
this 'discretion' meaning that the decision is one for the authority or
body to make, and not for the courts. Many statutes also prescribe or
at least presuppose the practical execution of policy decisions: a
convenient description of this is to say that in addition to the area of
policy or discretion, there is an operational area. Although this
distinction between the policy area and the operational area is
convenient, and illuminating, it is probably a distinction of degree;
many 'operational' powers or duties have in them some element of
'discretion.' It can safely be said that the more 'operational' a power
or duty may be, the easier it is to superimpose upon it a common law
duty of care."
East Suffolk [1941] A.C. 74 and Sheppard v. Glossop Corporation
[1921] 3 K.B. 132 were distinguished as involving questions of policy or
discretion. The inspection of foundations, on the other hand, was "heavily
operational" and the power to inspect could therefore give rise to a duty of
care. Lord Romer's statement of principle in East Suffolk was limited to cases
in which the exercise of the power involved a policy decision.
8. Policy and operations
Since Anns, there have been differing views, both in England and the
Commonwealth, over whether it was right to breach the protection which the
East Suffolk principle gave to public authorities. In Sutherland Shire Council
v. Heyman, 157 C.L.R. 424, 483, Brennan J. thought that it was wrong: one
simply could not derive a common law "ought" from a statutory "may". But
I think that he was the only member of the court to adhere to such
uncompromising orthodoxy. What has become clear, however, is that the
distinction between policy and operations is an inadequate tool with which to
discover whether it is appropriate to impose a duty of care or not. In Rowling
v. Takaro Properties Ltd. [1988] A.C. 473, 501 Lord Keith of Kinkel said:
- 26 "[Their Lordships] incline to the opinion, expressed in the literature,
that this distinction does not provide a touchstone of liability, but
rather is expressive of the need to exclude altogether those cases in
which the decision under attack is of such a kind that a question
whether it has been made negligently is unsuitable for judicial
resolution, of which notable examples are discretionary decisions on
the allocation of scarce resources or the distribution of risks. . . .
If this is right, classification of the relevant decision as a policy or
planning decision in this sense may exclude liability; but a conclusion
that it does not fall within that category does not, in their Lordships'
opinion, mean that a duty of care will necessarily exist."
There are at least two reasons why the distinction is inadequate. The
first is that, as Lord Wilberforce himself pointed out, the distinction is often
elusive. This is particularly true of powers to provide public benefits which
involve the expenditure of money. Practically every decision about the
provision of such benefits, no matter how trivial it may seem, affects the
budget of the public authority in either timing or amount. East Suffolk, about
which Lord Wilberforce said in Anns [1978] A.C. 728, 757, that the activities
of the board, though "operational," were "well within the discretionary area,
so that the plaintiff's task in contending for a duty of care was a difficult one"
is a very good example. But another reason is that even if the distinction is
clear cut, leaving no element of discretion in the sense that it would be
irrational (in the public law meaning of that word) for the public authority not
to exercise its power, it does not follow that the law should superimpose a
common law duty of care. This can be seen if one looks at cases in which a
public authority has been under a statutory or common law duty to provide a
service or other benefit for the public or a section of the public. In such cases
there is no discretion but the courts have nevertheless not been willing to hold
that a member of the public who has suffered loss because the service was not
provided to him should necessarily have a cause of action, either for breach
of statutory duty or for negligence at common law.
There are many instances of this principle being applied to statutory
duties, but perhaps the most relevant example of the dissociation between
public duty and a liability to pay compensation for breach of that duty was the
ancient common law duty to repair the highway. The common law imposed
this financial burden upon the inhabitants of the parish. But it saw no need
to impose upon them the additional burden of paying compensation to users
of the highway who suffered injury because the highway surveyor had failed
to repair. The duty could be enforced only by indictment. This rule
continued to apply when the duty to maintain was transferred by statute to
highway authorities and was only abolished by section 1 of the Highways
(Miscellaneous Provisions) Act 1961. Likewise in Hill v. Chief Constable of
West Yorkshire [1989] A.C. 53 it was held that the public duty of the police
to catch criminals did not give rise to a duty of care to a member of the public
who was injured because the police had negligently failed to catch one. The
decision was mainly based upon the large element of discretion which the
- 27 police necessarily have in conducting their operations, but the judgment
excludes liability even in cases in which the alleged breach of duty would
constitute public law irrationality.
In terms of public finance, this is a perfectly reasonable attitude. It is
one thing to provide a service at the public expense. It is another to require
the public to pay compensation when a failure to provide the service has
resulted in loss. Apart from cases of reliance, which I shall consider later,
the same loss would have been suffered if the service had not been provided
in the first place. To require payment of compensation increases the burden
on public funds. Before imposing such an additional burden, the courts
should be satisfied that this is what Parliament intended.
Whether a statutory duty gives rise to a private cause of action is a
question of construction: see Reg. v. Deputy Governor of Parkhurst Prison,
Ex parte Hague [1992] 1 A.C. 58. It requires an examination of the policy
of the statute to decide whether it was intended to confer a right to
compensation for breach. Whether it can be relied upon to support the
existence of a common law duty of care is not exactly a question of
construction, because the cause of action does not arise out of the statute
itself. But the policy of the statute is nevertheless a crucial factor in the
decision. As Lord Browne-Wilkinson said in X (Minors) v. Bedfordshire
County Council [1995] 2 A.C. 633, 739c in relation to the duty of care owed
by a public authority performing statutory functions:
"the question whether there is such a common law duty and if so its
ambit, must be profoundly influenced by the statutory framework
within which the acts complained of were done."
The same is true of omission to perform a statutory duty. If such a
duty does not give rise to a private right to sue for breach, it would be
unusual if it nevertheless gave rise to a duty of care at common law which
made the public authority liable to pay compensation for foreseeable loss
caused by the duty not being performed. It will often be foreseeable that loss
will result if, for example, a benefit or service is not provided. If the policy
of the act is not to create a statutory liability to pay compensation, the same
policy should ordinarily exclude the existence of a common law duty of care.
In the case of a mere statutory power, there is the further point that the
legislature has chosen to confer a discretion rather than create a duty. Of
course there may be cases in which Parliament has chosen to confer a power
because the subject matter did not permit a duty to be stated with sufficient
precision. It may nevertheless have contemplated that in circumstances in
which it would be irrational not to exercise the power, a person who suffered
loss because it had not been exercised, or not properly exercised, would be
entitled to compensation. I therefore do not say that a statutory "may" can
never give rise to a common law duty of care. I prefer to leave open the
question of whether Anns was wrong to create any exception to Lord
- 28 Romer's statement of principle in East Suffolk and I shall go on to consider
the circumstances (such as "general reliance") in which it has been suggested
that such a duty might arise. But the fact that Parliament has conferred a
discretion must be some indication that the policy of the act conferring the
power was not to create a right to compensation. The need to have regard to
the policy of the statute therefore means that exceptions will be rare.
In summary, therefore, I think that the minimum pre-conditions for
basing a duty of care upon the existence of a statutory power, if it can be
done at all, are, first, 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 secondly, that there are exceptional grounds for holding that the
policy of the statute requires compensation to be paid to persons who suffer
loss because the power was not exercised.
9. Particular and general reliance.
In Sutherland Shire Council v. Heyman, 157 C.L.R. 424, 483,
Brennan J., as I have mentioned, thought that a statutory power could never
generate a common law duty of care unless the public authority had created
an expectation that the power would be used and the plaintiff had suffered
damage from reliance on that expectation. A common example is the
lighthouse authority which, by the exercise of its power to build and maintain
a lighthouse, creates in mariners an expectation that the light will warn them
of danger. In such circumstances, the authority (unlike the Glossop
Corporation in Sheppard v. Glossop Corporation [1921] 3 K.B. 132) owes a
duty of care which requires it not to extinguish the light without giving
reasonable notice. This form of liability, based upon representation and
reliance, does not depend upon the public nature of the authority's powers and
causes no problems.
In the same case, however, Mason J. suggested a different basis upon
which public powers might give rise to a duty of care. He said, at p. 464:
"there will be cases in which the plaintiff's reasonable reliance will
arise out of a general dependence on an authority's performance of its
function with due care, without the need for contributing conduct on
the part of a defendant or action to his detriment on the part of a
plaintiff. Reliance or dependence in this sense is in general the
product of the grant (and exercise) of powers designed to prevent or
minimise a risk of personal injury or disability, recognised by the
legislature as being of such magnitude or complexity that individuals
cannot, or may not, take adequate steps for their own protection. This
situation generates on one side (the individual) a general expectation
that the power will be exercised and on the other side (the authority)
a realisation that there is a general reliance or dependence on its
exercise of the power . . . .The control of air traffic, the safety
- 29 inspection of aircraft and the fighting of a fire in a building by a fire
authority . . . may well be examples of this type of function."
This ground for imposing a duty of care has been called "general
reliance." It has little in common with the ordinary doctrine of reliance; the
plaintiff does not need to have relied upon the expectation that the power
would be used or even known that it existed. It appears rather to refer to
general expectations in the community, which the individual plaintiff may or
may not have shared. A widespread assumption that a statutory power will
be exercised may affect the general pattern of economic and social behaviour.
For example, insurance premiums may take into account the expectation that
statutory powers of inspection or accident prevention will ordinarily prevent
certain kinds of risk from materialising. Thus the doctrine of general reliance
requires an inquiry into the role of a given statutory power in the behaviour
of members of the general public, of which an outstanding example is the
judgment of Richardson J. in Invercargill City Council v. Hamlin [1994] 3
N.Z.L.R. 513, 526.
It appears to be essential to the doctrine of general reliance that the
benefit or service provided under statutory powers should be of a uniform and
routine nature, so that one can describe exactly what the public authority was
supposed to do. Powers of inspection for defects clearly fall into this
category. Another way of looking at the matter is to say that if a particular
service is provided as a matter of routine, it would be irrational for a public
authority to provide it in one case and arbitrarily withhold it in another. This
was obviously the main ground upon which this House in Anns considered that
the power of the local authority to inspect foundations should give rise to a
duty of care.
But the fact that it would be irrational not to exercise the power is, as
I have said, only one of the conditions which has to be satisfied. It is also
necessary to discern a policy which confers a right to financial compensation
if the power has not been exercised. Mason J. thought in Sutherland Shire
Council v. Heyman, 157 C.L.R. 424, 464 that such a policy might be inferred
if the power was intended to protect members of the public from risks against
which they could not guard themselves. In Invercargill, as I have said, the
New Zealand Court of Appeal [1994] 3 N.Z.L.R. 513 and the Privy Council
[1996] 2 W.L.R. 367 found it in general patterns of socio-economic
behaviour. I do not propose to explore further the doctrine of general reliance
because, for reasons which I shall explain, I think that there are no grounds
upon which the present case can be brought within it. I will only note in
passing that its application may require some very careful analysis of the role
which the expected exercise of the statutory power plays in community
behaviour. For example, in one sense it is true that the fire brigade is there
to protect people in situations in which they could not be expected to be able
to protect themselves. On the other hand, they can and do protect themselves
by insurance against the risk of fire. It not obvious that there should be a
right to compensation from a negligent fire authority which will ordinarily
- 30 -
ensure by right of subrogation to an insurance company. The only reason
would be to provide a general deterrent against inefficiency. But there must
be better ways of doing this than by compensating insurance companies out
of public funds. And while premiums no doubt take into account the existence
of the fire brigade and the likelihood that it will arrive swiftly upon the scene,
it is not clear that they would be very different merely because no
compensation was paid in the rare cases in which the fire authority negligently
failed to perform its public duty.
10. Anns v. Merton London Borough Council [1978] A.C. 728 in Canada.
Before coming to the facts of the present case, I should say something
about the Canadian cases which have followed Anns. They are relevant
because a number of them involve reliance upon the statutory powers of
highway authorities to create a common law duty of care. What is more, the
Canadian Supreme Court appears to have achieved this result without the aid
of any principle of discrimination other than the distinction between policy and
operations.
In Barratt v. District of North Vancouver (1980) 114 D.L.R. (3rd) 577
the plaintiff was a cyclist who was injured when he rode into a pothole. The
local authority had a statutory power, but no duty, to maintain the highway.
It had a system of inspecting roads once a fortnight. The pothole had
apparently come into existence since the last inspection a week earlier. At
first instance, the judge held that the local authority were negligent in not
having more frequent inspections. The Supreme Court, applying Anns, held
that frequency of inspections was a matter of policy and could not form the
basis of a charge of negligence. On the other hand, in Just v. British
Columbia (1989) 64 D.L.R. (4th) 689, frequency of inspections was held to
be operational. The plaintiffs car was struck by a boulder which had been
loosened by ice and snow and rolled down a hill onto the road. The British
Columbia Department of Highways had a statutory power to maintain the
highway and had a system of inspection of rock slopes to detect loose
boulders. The Supreme Court held that the Department could be negligent if
it did not inspect often enough. In Brown v. British Columbia (Minister of
Transport and Highways) (1994) 112 D.L.R. (4th) 1, the plaintiff was injured
when his truck skidded on black ice in cold November weather. He said that
the Department of Highways should have put salt and sand on the road to
prevent ice from forming. The court held that the Department's decision to
continue its infrequent summer schedule of road maintenance into November
was a matter of policy. The Department was therefore not negligent even if
an earlier adoption of the winter schedule would have prevented the accident.
I have to say that these cases seem to me to illustrate the inadequacy
of the concepts of policy and operations to provide a convincing criterion for
deciding when a duty of care should exist. The distinctions which they draw
- 31 are hardly visible to the naked eye. With all respect to the majority, I prefer
the vigorous dissenting judgments of Sopinka J. in the latter two cases.
11. Duties of a highway authority
I return to consider whether the Council owed a duty of care which
required it to take steps to improve the junction. Since the only basis for such
a duty is the authority's statutory powers, both specifically under section 79
of the Act of 1980 and generally to carry out works of improvement with the
consent of British Rail, I will start by asking whether in the light of what the
council knew or ought to have known about the junction, it would have had
a duty in public law to undertake the work. This requires that it would have
been irrational not to exercise its discretion to do so. The trial judge did not
address himself to this question. He thought it was sufficient that, as he put
it, "a decision had already been taken to deal with the situation" in which
"budgetary considerations were not a restraint".
The fact that Mr. Longhurst and Mr. Deller had agreed to do the work
does not show that it would have been unreasonable or irrational for the
council not to have done it. That is simply a non sequitur. The Court of
Appeal seems to have reasoned that the "decision" to do the work disposed of
any question of policy or discretion and left only the operational question of
when the work should have been done. But this too seems to me fallacious.
The timing of the work and the budgetary year in which the money is spent
is surely as much a matter of discretion as the decision in principle to do it.
And why should the council be in a worse position than if Mr. Longhurst had
left Mr. Deller's report at the bottom of his in-tray and forgotten about it?
In that case, it is said, the council would have been in breach of its duty in
public law to give due consideration to the exercise of its powers. Perhaps
it would, but that does not advance the case far enough. It would still be
necessary to say that if the council had considered the matter, it would have
been bound to decide to do the work. One comes back, therefore, to the
question of whether it would have been irrational to decide not to do it.
Furthermore, to say that a decision had been taken oversimplifies the
situation. Mr. Longhurst had not committed himself to any particular time
within which the work would be done. There was, as Mr. Deller said, a "nil
time scale involved;" he did not think it mattered whether the work took one,
two or three years. At the time when the letter to British Rail was sent, the
March 1988 accident with the police car had not yet happened. Nor was it
notified to Mr. Longhurst or Mr. Deller when it did. The judge found that
they would have displayed a greater sense of urgency if they had known about
it. But the judge made no finding that the council should have had a system
by which Mr. Longhurst was notified of every accident on the roads of South
Norfolk. Such a system would have been quite impractical. There were
3,500 personal injury accidents in Norfolk every year and their particulars
were simply entered on a computer from which the Accident Studies Section
in Norwich identified "cluster sites" for special attention. No firm decision
- 32 had been taken on expenditure either. Mr. Deller thought that the work would
cost less than £1,000, in which case it would have come within
Mr. Longhurst's discretionary budget for small works. But he said he could
not be sure of the cost until he had consulted a design engineer: "it could be
lots and lots more." This caution was justifies by events. After Mr. Stovin's
accident, Mr. Brian Meadows, who worked for the Accident Studies Section,
inspected the junction and said that the bank could not be regraded within the
budget for a low cost remedial scheme.
The judge, as I say, made no finding as to whether it would have been
irrational for the council not to have done the work. The unchallenged
evidence of Mr. Reid, who was head of the Accident Studies Office, would
have made it very difficult to do so. In evidence in chief, he was asked about
the March 1988 accident:
"Q. So far as you are concerned, what difference, if any, would the
significance of this accident have made in relation to priority given to carrying
out work at this site, against the background of what had happened with
British Rail?
"A. In practical terms, it would have made no difference at all to the
priority within the accident remedial budget, because our attention and
resources would have been directed to those many sites in the county which
already had much higher accident records."
There was no suggestion in cross-examination that this was an unreasonable,
let alone irrational, attitude to take.
It seems to me therefore that the question of whether anything should
be done about the junction was at all times firmly within the area of the
council's discretion. As they were therefore not under a public law duty to
do the work, the first condition for the imposition of a duty of care was not
satisfied.
But even if it were, I do not think that the second condition would be
satisfied. Assuming that the highway authority ought, as a matter of public
law, to have done the work, I do not think that there are any grounds upon
which it can be said that the public law duty should give rise to an obligation
to compensate persons who have suffered loss because it was not performed.
There is no question here of reliance on the council having improved the
junction. Everyone could see that it was still the same. Mr. Stovin was not
arbitrarily denied a benefit which was routinely provided to others. In respect
of the junction, he was treated in exactly the same way as any other road user.
The foundation for the doctrine of general reliance is missing in this case,
because we are not concerned with provision of a uniform identifiable benefit
or service. Every hazardous junction, intersection or stretch of road is
different and requires a separate decision as to whether anything should be
done to improve it. It is not without significance that the Canadian cases in
- 33 which a duty of care has been held to exist have all involved routine
inspection and maintenance rather than improvements.
I have mentioned earlier that maintenance of the highway was, until
1961, a striking example of a public duty which involved no obligation to
compensate a person who had suffered damage because of its breach. The
power in section 79, upon which the plaintiff principally relies to generate a
duty of care, was first enacted as section 4 of the Road Improvement Act
1925. It seems to me impossible to discern a legislative intent that there
should be a duty of care in respect of the use of that power, giving rise to a
liability to compensate persons injured by a failure to use it, when there was
at the time no such liability even for breach of the statutory duty to maintain
the highway.
In my view the creation of a duty of care upon a highway authority,
even on grounds of irrationality in failing to exercise a power, would
inevitably expose the authority's budgetary decisions to judicial inquiry. This
would distort the priorities of local authorities, which would be bound to try
to play safe by increasing their spending on road improvements rather than
risk enormous liabilities for personal injury accidents. They will spend less
on education or social services. I think that it is important, before extending
the duty of care owed by public authorities, to consider the cost to the
community of the defensive measures which they are likely to take in order
to avoid liability. It would not be surprising if one of the consequences of
Anns and the spate of cases which followed was that local council inspectors
tended to insist upon stronger foundations than were necessary. In a case like
this, I do not think that the duty of care can be used as a deterrent against
low standards in improving the road lay-out. Given the fact that the British
road network largely antedates the highway authorities themselves, the court
is not in a position to say what an appropriate standard of improvement would
be. This must be a matter for the discretion of the authority. On the other
hand, denial of liability does not leave the road user unprotected. Drivers of
vehicles must take the highway network as they find it. Everyone knows that
there are hazardous bends, intersections and junctions. It is primarily the duty
of drivers of vehicles to take due care. And if, as in the case of Mrs Wise,
they do not, there is compulsory insurance to provide compensation to the
victims. There is no reason of policy or justice which requires the highway
authority to be an additional defendant. I would therefore allow the appeal.
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