House of Lords
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TORTS; Negligence
HOUSE OF LORDS
LORD GOFF OF CHIEVELEY, LORD JAUNCEY OF TULLICHETTLE, LORD SLYNN OF HADLEY, LORD NICHOLLS OF BIRKENHEAD AND LORD HOFFMANN
23, 24 JANUARY, 24 JULY 1996
Negligence – Highway – Duty of highway authority – Obstruction of visibility – Duty to remove obstruction – Bank on land adjoining highway restricting visibility – Defendant alleging highway authority negligent in not reducing risk to road users caused by restricted visibility at road junction – Highway authority having power to compel removal of embankment – Whether authority owing duty of care in respect of omission to take action – Whether compensation payable in respect of loss arising from omission to take action – Highways Act 1980, ss 41, 79.
The plaintiff was injured when his motor cycle collided with a car driven by the defendant at a junction where the view from the plaintiff’s direction of the side road from which the defendant emerged was obscured by an earth bank on railway land adjacent to the road. The local highway authority was aware that the presence of the bank made the junction dangerous and had approached the railway authority with an offer to remove the bank and pay the cost, which was thought to be about £1000, but at the time of the accident no further action had been taken. The plaintiff sued the defendant, who joined the highway authority as third party, alleging that it had failed to have the bank removed in breach of its statutory duty under s 41a of the Highways Act 1980 to maintain the highway or in breach of its common law duty to users of the highway to remove dangers which impaired visibility. At the trial of the plaintiff’s action the judge found that the highway authority, although not in breach of its statutory duty, was in breach of its common law duty of care and 30% to blame for the accident. The Court of Appeal dismissed an appeal by the highway authority, which appealed to the House of Lords on the issue whether it owed the plaintiff any common law duty of care in respect of its failure to take action.
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a Section 41, so far as material, provides: ‘(1) The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty ... to maintain the highway.’
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Held (Lord Slynn of Hadley and Lord Nicholls of Birkenhead dissenting) The appeal would be allowed for the following reasons—
(1) In determining whether a public authority was under a liability for a negligent omission to exercise a statutory power the court had to decide, in the light of the policy of the statute conferring the power, whether the authority was not only under a duty in public law to consider the exercise of the power but also under a private law duty to act, which gave rise to a claim in compensation against public funds for any failure to do so. The minimum preconditions for basing a duty of care upon the existence of a statutory power in respect of an omission to exercise the power, if it could be done at all, were 801(i) that in the circumstances it would have been irrational for the authority not to have exercised the power, so that there was in effect a public law duty to act, and (ii) that there were exceptional grounds for holding that the policy of the statute conferred a right to compensation on persons who suffered loss if the power was not exercised. The fact that payment of compensation increased the burden on public funds and that Parliament had chosen to confer a discretion on a public authority rather than create a duty indicated that the policy of the Act conferring the power was not to create a right to compensation (see p 804 j, p 825 e f, p 827 f g j to p 828 e and p 833 b, post); East Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527 andAnns v Merton London Borough [1977] 2 All ER 492 considered.
(2) It was not irrational for the highway authority to decide not to take any action to remove the bank or to have it removed, since it was under no duty in public law to undertake the work as that was a matter for the authority’s discretion; but even if the authority ought, as a matter of public law, to have done the work, there were no grounds upon which it could be said that the public law duty gave rise to an obligation to compensate persons who suffered loss because it was not performed. It was impossible to discern in s 79b of the 1980 Act a legislative intent that there should be a duty of care in respect of the use of the power contained in the section which gave rise to a liability to compensate persons injured by a failure to use it, when there was no such liability even for breach of the statutory duty to maintain the highway. Furthermore, there was no question of reliance on the council to improve the junction and the plaintiff had not been arbitrarily denied a benefit which was routinely provided to others, as he had been treated in exactly the same way as any other road user in respect of the junction, so that the foundation for the doctrine of general reliance was missing (see p 804 j, p 831 b to d, p 832 b to e and p 833 b, post).
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b Section 79, so far as material provides: ‘(1) Where … the highway authority … deem it necessary for the prevention of danger arising from obstruction to the view of persons using the highway to impose restrictions with respect to any … junction of the highway … the authority may … serve a notice … on the owner or occupier of the land, directing him to alter any wall … so as to cause it to conform with any requirements specified in the notice …’
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Per Lord Hoffmann (Lord Goff and Lord Jauncey concurring). (1) 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, because first, the distinction is often elusive, particularly in the case of powers to provide public benefits which involve the expenditure of money, since 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. Secondly, even if the distinction is clear cut, leaving no element of discretion in the sense that it would be irrational (in the public law sense) for the public authority not to exercise its power, it does not follow that the law should superimpose a common law duty of care when, apart from cases of general reliance, the same loss would have been suffered if the service had not been provided in the first place (see p 804 j, p 826 d g to j and p 827 e, post); Rowling v Takaro Properties Ltd [1988] 1 All ER 163 considered.
(2) 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 802 supposed to do, or to put it another way, if a particular service is provided as a matter of routine, that it would be irrational for a public authority to provide it in one case and arbitrarily withhold it in another (see p 804 j and p 829 e, post); Sutherland Shire Council v Heyman (1985) 157 CLR 424 considered.
Decision of the Court of Appeal [1994] 3 All ER 467 reversed.
Notes
For the liabilities of local authorities in tort, see 48 Halsbury’s Laws (4th edn) para 1214, and for cases on the subject, see 46 Digest (Reissue) 238–239, 1989–1990.
For the Highways Act 1980, ss 41, 79, see 20 Halsbury’s Statutes (4th edn) 176, 211.
Cases referred to in opinions
Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, [1981] AC 1001, [1981] 2 WLR 188, HL.
Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, [1977] 2 WLR 1024, HL.
Barratt v District of North Vancouver [1980] 2 SCR 418, Can SC.
Brown v British Columbia (Minister of Transportation and Highways) [1994] 1 SCR 420, [1994] 3 LRC 581, Can SC.
Canadian National Rly Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021, Can SC.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1, HL.
East Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527, [1941] AC 74, HL; rvsg [1939] 4 All ER 174, [1940] 1 KB 319, CA.
Goldman v Hargrave [1966] 2 All ER 989, [1967] 1 AC 645, [1966] 3 WLR 513, PC; affg (1963) 110 CLR 40, Aust HC.
Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 58, [1991] 3 WLR 340, HL.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465, [1963] 3 WLR 101, HL.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, [1970] 2 WLR 1140, HL.
Invercargill City Council v Hamlin [1996] 1 All ER 756, [1996] 2 WLR 367, PC; affg [1994] 3 NZLR 513, NZ CA.
Jones v Dept of Employment [1988] 1 All ER 725, [1989] QB 1, [1988] 2 WLR 493, CA.
Just v British Columbia [1989] 2 SCR 1228, Can SC.
McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53, [1995] 1 AC 233, [1994] 3 WLR 187, HL.
McLoughlin v O’Brian [1982] 2 All ER 298, [1983] 1 AC 410, [1982] 2 WLR 982, HL.
Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93, [1861–73] All ER Rep 397.
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Murphy v Brentwood DC [1990] 2 All ER 908, [1991] 1 AC 398, [1990] 3 WLR 414, HL; rvsg [1990] 2 All ER 269, [1991] 1 AC 398, [1990] 2 WLR 944, CA.
Nottinghamshire CC v Secretary of State for the Environment [1986] 1 All ER 199, [1986] AC 240, [1986] 2 WLR 1, HL.
Parramatta City Council v Lutz (1988) 12 NSWLR 293, Aust CA.
Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529, [1985] AC 210, [1984] 3 WLR 953, HL.
Rowling v Takaro Properties Ltd [1988] 1 All ER 163, [1988] AC 473, [1988] 2 WLR 418, PC.
Secretary of State for Education and Science v Tameside Metropolitan Borough [1976] 3 All ER 665, [1977] AC 1014, [1976] 3 WLR 641, HL.
Sheppard v Glossop Corp [1921] 3 KB 132, [1921] All ER Rep 61, CA.
Sutherland Shire Council v Heyman (1985) 157 CLR 424, 60 ALR 1, Aust HC.
Swanson Estate v Canada (1991) 80 DLR (4th) 741, Can Fed Ct.
X and ors (minors) v Bedfordshire CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.
Appeal
Norfolk County Council, the third party in an action brought by the plaintiff, Thomas Michael Stovin, against the defendant, Rita Wise, appealed from the decision of the Court of Appeal (Nourse, Kennedy and Roch LJJ) ([1994] 3 All ER 467, [1994] 1 WLR 1124) delivered on 16 February 1994 dismissing the council’s appeal from the judgment of Judge Crawford QC sitting as a judge of the High Court on 27 July 1992, whereby he ordered that judgment be entered for the plaintiff for damages for personal injuries sustained when the car driven by the defendant collided with the motor cycle ridden by the plaintiff, and held in the third party proceedings that the defendant was liable for 70% and the council 30% of the damages payable. The plaintiff took no part in the appeal. The facts are set out in the opinion of Lord Nicholls of Birkenhead.
Timothy Stow QC and Mervyn Roberts (instructed by Eversheds, Ipswich) for the council.
Robert F Nelson QC and Richard Hone (instructed by Mills & Reeve, Norwich) for the defendant.
Their Lordships took time for consideration.
24 July 1996. The following opinions were delivered.
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 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.
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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.
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, the 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 County 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 s 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 11 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 QC, sitting as a judge of the High Court, held that the car driver was 70% to blame for the accident, and Norfolk Council 30%. The Court of Appeal (Nourse, Kennedy and Roch LJJ) ([1994] 3 All ER 467, [1994] 1 WLR 1124) dismissed the council’s appeal. On this further appeal to your Lordships’ House, the question is whether the council owed the plaintiff any common 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 s 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.
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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. Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 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.
Common 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 [1966] 2 All ER 989, [1967] 1 AC 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.
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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.
Omissions and proximity
Norfolk County 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 [1940] 4 All ER 527, [1941] AC 74). The decision in Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728 liberated the law from this unacceptable yoke. This was the great contribution Annsmade to the development of the common law.
However, as with Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 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 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 inCaparo Industries plc v Dickman [1990] 1 All ER 568 at 573–574, [1990] 2 AC 605 at 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. 807Clearly, foreseeability of loss is by itself an insufficient foundation for a duty to take positive action. Close attention to the language of Lord Wilberforce ([1977] 2 All ER 492 at 498–499, [1978] AC 728 at 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 [1982] 2 All ER 298 at 303, [1983] 1 AC 410 at 420, 421 per Lord Wilberforce and Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 at 710, [1988] AC 175 at 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 that 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 Court of Canada in Canadian National Rly Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 at 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 CLR 424 at 496, Deane J in the High Court of Australia observed that Lord Atkin’s notion of proximity in Donoghue v Stevenson [1932] AC 562, [1932] All ER Rep 1 ‘involved both an evaluation of the closeness of the relationship and a judgment of the legal consequences of that evaluation’. Deane J added (at 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 in 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 and808 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 careless 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 [1966] 2 All ER 989 at 996, [1967] 1 AC 645 at 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 [1977] 2 All ER 492, [1978] AC 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 809 common law is still sufficiently adaptable. The common law has long recognised 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 asDonoghue v Stevenson and Hedley Byrne & Co Ltd v Heller & Partners Ltd. 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 eg Arrowsmith Civil Liability and Public Authorities (1992) pp 176–185; S H Bailey and M J Bowman ‘The Policy/Operation Dichotomy—A Cuckoo in the Nest’ [1986] CLJ 430; Sir Gerard Brennan ‘Liability in Negligence of Public Authorities: The Divergent Views’ (1990) 48 Advocate 842; Buckley The Modern Law of Negligence (2nd edn, 1993) pp 229–247; Craig Administrative Law (3rd edn, 1994) pp 618–632; P P Craig ‘Negligence in the Exercise of a Statutory Power’ (1978) 94 LQR 428; de Smith, Woolf and JowellJudicial Review of Administrative Action (5th edn, 1995) pp 774–782; J J Doyle QC (Solicitor General for South Australia) ‘The Liability of Public Authorities’ (1994) 2 Tort Law Rev 189; Fleming The Law of Torts(8th edn, 1992) pp 146–159; Karen Hogg ‘The Liability of a Public Authority for the Failure to Carry Out a Careful Exercise of its Statutory Power: The Significance of the High Court’s Decision in Sutherland Shire Council v Heyman’ (1991) 17 Mon LR 285; Malcolm J ‘The Liability and Responsibility of Local Government Authorities: Trends and Tendencies’ (1991) 7 Aust Bar Rev 209; Sopinka J (Supreme Court of Canada) ‘The Liability of Public Authorities: Drawing the Line’ (1993) 1 Tort Law Rev 123; Stephen Todd ‘The Negligence Liability of Public Authorities: Divergence in the Common Law’ (1986) 102 LQR 370; J C Smith and Peter Burns ‘Donoghue v Stevenson—The Not So Golden Anniversary’ (1983) 46 MLR 147; Wade and ForsythAdministrative Law (7th edn, 1994) pp 771–783; and Winfield and Jolowicz on Tort (14th edn, 1994) pp 78–90, 102–103.
The 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 810 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 NSWLR 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.
The 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 [1976] 3 All ER 665 at 695, [1977] AC 1014 at 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 County 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 811 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 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 (eg the regulatory power in Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 at 713, [1988] AC 175 at 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 [1984] 3 All ER 529, [1985] AC 812210 and Murphy v Brentwood DC [1990] 2 All ER 269 at 276, [1991] 1 AC 398 at 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 and ors (minors) v Bedfordshire CC [1995] 3 All ER 353 at 380–382, [1995] 2 AC 633 at 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] 2 SCR 1228 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] 1 All ER 163 at 172–173, [1988] AC 473 at 501–502 and Jones v Dept of Employment[1988] 1 All ER 725 at 736, 738–739, [1989] QB 1 at 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] 1 All ER 756, [1996] 2 WLR 367 and see the New Zealand Court of Appeal [1994] 3 NZLR 513 at 519, 524–525, 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 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(1985) 157 CLR 424 at 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 813 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 DLR (4th) 741.
Some decisions since Anns have gone further and identified a ‘no go’ area for concurrent common law duties (see Anns [1977] 2 All ER 492 at 500, [1978] AC 728 at 754, Sutherland Shire Council v Heyman(1985) 157 CLR 424 at 469 per Mason J, Rowling v Takaro Properties Ltd [1988] 1 All ER 163 at 172, [1988] AC 473 at 501 and X and ors (minors) v Bedfordshire CC [1995] 3 All ER 353 at 370, [1995] 2 AC 633 at 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 eg Nottinghamshire CC v Secretary of State for the Environment [1986] 1 All ER 199, [1986] AC 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 1980
I turn to apply these principles to the present case. The 1980 Act provides that the authority for a highway maintainable at public expense is under a duty to maintain the highway (see s 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 (see s 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 814 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 take the necessary action to get rid of the source of danger (see ss 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 distinction does not commend itself. It would be at variance with ordinary persons’ expectations and perceptions.
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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 LJ encapsulated the practical effect ([1994] 3 All ER 467 at 482, [1994] 1 WLR 1124 at 1140):
‘[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. 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 816 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 that 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.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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