Lord Hoffman
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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.
Judge Crawford QC found that Mrs Wise had not been keeping a proper look out and was 70% to blame for the accident. He attributed the other 30% 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 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 12 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.
817
(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 s 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] AC 562, [1932] All ER Rep 1 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 and the council through its officers actually knew of the risk. In addition, the council was a public authority. He said, quoting du Parq LJ in Kent v East Suffolk Rivers Catchment Board[1939] 4 All ER 174 at 184, [1940] 1 KB 319 at 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 offers limited help. In the High Court of Australia in Hargrave v Goldman (1963) 110 CLR 40 at 65–66 Windeyer J drew attention to the irony in Lord Atkin’s allusion ([1932] AC 562 at 580, [1932] All ER Rep 1 at 11), in formulating his ‘neighbour’ test, to the parable of the Good Samaritan:
‘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.’
818
A similar point was made by Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 325, [1970] AC 1004 at 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 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 Hargrave v Goldman (1963) 110 CLR 40 at 66 Windeyer J said:
‘The trend of judicial development of the law of negligence has been … to found a duty of 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 Hargrave 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 Hargrave [1966] 2 All ER 989, [1967] 1 AC 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 819 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 have to return to this central question at some length. But Kennedy LJ and Roch LJ (with whom Nourse LJ agreed) each made additional points independent of the public nature of the highway authority. Kennedy LJ said 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.’ (See [1994] 3 All ER 467 at 480, [1994] 1 WLR 1124 at 1138.)
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 mph 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 mph. 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 LJ 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, one of the exceptional grounds upon which there may be a duty to take positive steps to protect others from harm. Therefore Roch LJ 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 [1994] 3 All ER 53, [1995] 8201 AC 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 said ([1994] 3 All ER 53 at 59, [1995] 1 AC 233 at 243):
‘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 them 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 1980 Act. 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 s 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 LJ said, the highway authority alone had the financial and physical resources, as well as the legal powers, to eliminate the hazard (see [1994] 3 All ER 467, [1994] 1 WLR 1124 at 1139). 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) LR 1 HL 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. For example, it may be 821authorised to do something which necessarily involves committing what would otherwise be a tort. In such a case it will not be liable (see Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, [1981] AC 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 (see X and ors (minors) v Bedfordshire CC [1995] 3 All ER 353, [1995] 2 AC 633 and Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 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 [1977] 2 All ER 492, [1978] AC 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 Corp [1921] 3 KB 132, [1921] All ER Rep 61 the council had power to light the streets of Glossop. But their policy was to turn off the lamps at 9 pm. 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 LJ said ([1921] 3 KB 132 at 150, [1921] All ER Rep 61 at 71):
‘[The local authority] is under no legal 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 [1940] 4 All ER 527 at 543, [1941] AC 74 at 102, the facts of which are too well known to need repetition, Lord Romer cited Sheppard v Glossop Corp 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.’
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 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 822pervading the sphere of statutory functions of public bodies, had not at that time become fully recognised.’ (See [1977] 2 All ER 492 at 502–503, [1978] AC 728 at 757.)
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 the East Suffolk case 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 plaintiff’s land to do work which the plaintiff himself could have done, the board accepted a duty to execute the work with due despatch (see [1940] 4 All ER 527 at 535–536, [1941] AC 74 at 91–92). 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 Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004 also cast no doubt upon the general principle stated by Lord Romer in the East Suffolk case. The only reference to the case is by Viscount Dilhorne in a dissenting speech (see [1970] 2 All ER 294 at 317, [1970] AC 1004 at 1050). 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) LR 1 HL 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.
(7) Anns v Merton London Borough
This brings me to Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728. 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 823 overruled by Murphy v Brentwood DC [1990] 2 All ER 908, [1991] 1 AC 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 eg Caparo Industries plc v Dickman [1990] 1 All ER 568 at 573–574, [1990] 2 AC 605 at 617–618 per Lord Bridge of Harwich). 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 the Anns case 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 inEast Suffolk Rivers Catchment Board v Kent [1940] 4 All ER 527 at 540, [1941] AC 74 at 97: a public 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 ([1977] 2 All ER 492 at 501, [1978] AC 728 at 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 824 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 CLR 424 at 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 rise to a claim in compensation against public funds for its failure to do so? Or, as Lord Wilberforce puts it in Anns’ case ([1977] 2 All ER 492 at 500, [1978] AC 728 at 754):
‘The problem which this type 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’ case provides for defining these circumstances is the distinction between policy and operations. Lord Wilberforce said ([1977] 2 All ER 492 at 500, [1978] AC 728 at 754):
‘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 825 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 and Sheppard v Glossop Corp [1921] 3 KB 132, [1921] All ER Rep 61 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 the East Suffolk case was limited to cases in which the exercise of the power involved a policy decision.
(8) Policy and operations
Since Anns v Merton London Borough 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 (1985) 157 CLR 424 at 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] 1 All ER 163 at 172, [1988] AC 473 at 501 Lord Keith of Kinkel said:
‘[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. The East Suffolk case, about which Lord Wilberforce said in Anns’ case [1977] 2 All ER 492 at 502, [1978] AC 728 at 757 that the activities of the board, though ‘operational’, were ‘well within a 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 826 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 s 1 of the Highways (Miscellaneous Provisions) Act 1961. Likewise, in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 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 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 (seeHague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 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 and ors (minors) v Bedfordshire CC [1995] 3 All ER 353 at 371, [1995] 2 AC 633 at 739 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 827 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’ case was wrong to create any exception to Lord Romer’s statement of principle in the East Suffolk case 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 (1985) 157 CLR 424 at 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 corporation in Sheppard v Glossop Corp) 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 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 828 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 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 NZLR 513 at 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 (1985) 157 CLR 424 at 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 the Invercargill case, as I have said, the New Zealand Court of Appeal ([1994] 3 NZLR 513) and the Privy Council ([1996] 1 All ER 756, [1996] 2 WLR 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 is not obvious that there should be a right to compensation from a negligent fire authority, which will ordinarily enure by right of subrogation to an insurance company. The only reason would be to provide a general deterrent against inefficiency. But there 829 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 in Canada
Before coming to the facts of the present case, I should say something about the Canadian cases which have followed Anns’ case. 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] 2 SCR 418 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] 2 SCR 1228, frequency of inspections was held to be operational. The plaintiff’s 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 vBritish Columbia (Minister of Transportation and Highways) [1994] 1 SCR 420 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 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 s 79 of the 1980 Act 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 830 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 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 justified 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 831 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 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 s 79, upon which the plaintiff principally relies to generate a duty of care, was first enacted as s 4 of the Roads 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’ case 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 layout. Given the fact that the British road network largely antedates the832 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.
Appeal allowed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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