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United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Stovin v Wise [1996] UKHL 15 (24 July 1996) URL: http://www.bailii.org/uk/cases/UKHL/1996/15.html Cite as: [1996] 3 WLR 389, [1996] 3 All ER 801, [1996] AC 923, [1996] UKHL 15

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JISCBAILII_CASE_TORTJISCBAILII_CASE_CONSTITUTIONAL

Parliamentary Archives,

HL/PO/JU/18/256

Stovin and another (Respondent) v. Norfolk County Council (Appellants)

JUDGMENT

Die Mercurii 24° Julii 1996

Upon Report from the Appellate Committee to whom was referred the CauseStovin and another against Norfolk County Council, That the Committee had heardCounsel as well on Tuesday the 23rd as on Wednesday the 24th day of January last uponthe Petition and Appeal of Norfolk County Council, of County Hall, Martineau Lane,Norwich, praying that the matter of the Order set forth in the Schedule thereto, namely anOrder of Her Majesty's Court of Appeal of the 16th day of February 1994, might bereviewed before Her Majesty the Queen in Her Court of Parliament and that the saidOrder might be reversed, varied or altered or that the Petitioners might have such otherrelief in the premises as to Her Majesty the Queen in Her Court of Parliament mightseem meet; as upon the case of Rita Wise lodged in answer to the said Appeal; and dueconsideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court ofParliament of Her Majesty the Queen assembled, That the said Order of Her Majesty'sCourt of Appeal of the 16th day of February 1994 complained of in the said Appeal, andthe Order of His Honour Judge Crawford of the 27th day of July 1992, in the proceedingsbetween the Respondent as Defendant and the Appellants as Third Party, be, and the

same are hereby, Set aside and the Respondent's claims against the Appellants dismissed:And it is further Ordered, That the Respondent do pay or cause to be paid to the saidAppellants the Costs incurred by them in the High Court, in the Court of Appeal and inrespect of the said Appeal to this House, the amount of such last-mentioned Costs to becertified by the Clerk of the Parliaments if not agreed between the parties.

Cler: Parliamentor:

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSE

STOVIN AND ANOTHER(RESPONDENT)

v.

NORFOLK COUNTY COUNCIL(APPELLANTS)

ON 24TH JULY 1996

Lord Goff of ChieveleyLord Jauncey of TullichettleLord Slynn of HadleyLord Nicholls of BirkenheadLord Hoffmann

LORD GOFF OF CHIEVELEY

My Lords,

I have had the advantage of reading in draft the speech of my nobleand learned friend Lord Hoffmann and for the reasons he gives I too wouldallow this appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech of my nobleand learned friend Lord Hoffmann and for the reasons he gives I too wouldallow this appeal.

LORD SLYNN OF HADLEY

My Lords,

I have had the advantage of reading in draft the speech of my nobleand learned friend Lord Nicholls of Birkenhead and for the reasons he givesI too would dismiss this appeal.

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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 statutorypower. When may a public authority be liable in damages for anunreasonable failure to act, in breach of its public law obligations?

The public body is a highway authority: Norfolk County Council.Highway authorities have responsibilities for maintaining and improvinghighways, including powers to remove potential sources of danger. Section79 of the Highways Act 1980 is such a power. Where a highway authoritydeems it necessary for the prevention of danger arising from obstruction to theview of road users, the authority has power to serve a notice on the owner ofland directing him to alter a fence or wall or bank. The owner may recoverthe cost from the authority.

Had Norfolk Council exercised this power in 1988 in respect of thefork of land at the junction of Station Road and Cemetery Lane atWymondham, the road accident in which the plaintiff, Mr. Stovin, wasgrievously injured would not have happened. Indeed, steps short of actuallyserving a section 79 notice would have sufficed.

The council knew this was an exceedingly dangerous junction.Visibility was very limited for vehicles turning right out of Cemetery Laneinto Station Road, and accidents had occurred in 1976 and 1982. Thenecessary remedial work was relatively straightforward and could be donequickly, cheaply and effectively. The work would cost less than £1,000, andmoney was available.

The council decided to act. On 14 January 1988 the council wrote toBritish Rail, the owner of the land, suggesting that part of the bank should beremoved in order to improve visibility. The council would do the work at itsown expense. That was eleven months before the accident. A site meetingtook place early in February. The representatives of British Rail agreed toseek the necessary internal approval. They did not get in touch again, and thecouncil did not send a reminder. The council official handling the matter wasmoved to other duties, and the matter was allowed to go to sleep. A thirdaccident happened on 6 March.

On 11 December 1988 as the plaintiff rode along Station Road, he wasknocked off his motorcycle by a car turning right out of Cemetery Lane.Judge Crawford Q.C., sitting as a judge of the High Court, held the car driverwas 70 per cent. to blame for the accident, and Norfolk Council 30 per cent.The Court of Appeal, comprising Nourse, Kennedy and Roch L.JJ., dismissedthe council's appeal: [1994] 1 W.L.R. 1124. On this further appeal to yourLordships' House, the question is whether the council owed the plaintiff any

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common law duty in respect of its failure to take action. That is the solequestion. The council does not seek to disturb the judge's conclusion that ifthe duty existed, the council was in breach. In other words, the council failedto act as a reasonable authority in the circumstances. The council need nothave exercised its power under section 79 to compel British Rail to alter acorner of its land. If the site meeting had been followed up, British Railwould have given consent, and the council itself would have completed thework before the date of the accident.

Liability for omissions

The starting point is that the council did not create the source ofdanger. This is not a case of a highway authority carrying out road workscarelessly and thereby creating a hazard. In the present case the councilcannot be liable unless it was under a duty requiring it to act. If the plaintiffis to succeed the council must have owed him a duty to exercise its powersregarding a danger known to it but not created by it.

The distinction between liability for acts and liability for omissions iswell known. It is not free from controversy. In some cases the distinction isnot clear cut. The categorisation may depend upon how broadly one lookswhen deciding whether the omission is a "pure" omission or is part of a largercourse of activity set in motion by the defendant. Failure to apply thehandbrake when parking a vehicle is the classic illustration of the latter. Thenthe omission is the element which makes the activity negligent. Dorset YachtCo. Ltd. v. Home Office [1970] A.C. 1004 is an instance where the distinctionwas not so easy to apply.

Despite the difficulties, the distinction is fundamentally sound in thisarea of the law. The distinction is based on a recognition that it is one matterto require a person to take care if he embarks on a course of conduct whichmay harm others. He must take care not to create a risk of danger. It isanother matter to require a person, who is doing nothing, to take positiveaction to protect others from harm for which he was not responsible, and tohold him liable in damages if he fails to do so.

The law has long recognised that liability can arise more readily in thefirst situation than the second. This is reasonable. In the second situation aperson is being compelled to act, and to act for the benefit of another. Theremust be some special justification for imposing an obligation of this character.Compulsory altruism needs more justification than an obligation not to createdangers to others when acting for one's own purposes.

There is no difficulty over categorisation in the present case. Thecouncil did not bring about the dangerous configuration and poor visibility atthe road junction. The question is whether it was in breach of a common lawduty by carelessly failing to remove this source of danger.

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Common law duties to take positive action

Common law obligations to take positive action arise mainly in contractand fiduciary relationships. They may also arise in tort. Familiar instancesare parent and child, employer and employee, school and pupil. Theestablished categories are useful because they embrace common types ofsituation, but these categories are no more closed than any other categories ofnegligence. Their unifying thread is some circumstance, or combination ofcircumstances, which makes it fair and reasonable that one person should berequired to take reasonable steps for another's protection or benefit.

Perhaps the established category nearest to the present case comprisesoccupiers of land and their neighbours. An occupier is under a common lawduty 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 takereasonable steps to this end, for the benefit of his neighbours: see Goldmanv. Hargrave [1967] 1 A.C. 645. If an occupier's tree is struck by lightningand catches fire, he must take reasonable steps to prevent the fire spreading.He must act as would a reasonable occupier in his position.

In this situation a combination of features is present: foreseeability ofdamage or injury if preventive steps are not taken; control by the occupier ofa known source of danger; dependence, or vulnerability, of the neighbour; andthe prospect of damage or injury out of all proportion to the preventive stepsrequired.

Even this combination is not enough. The classic example of theabsence of a legal duty to take positive action is where a grown person standsby while a young child drowns in a shallow pool. Another instance is wherea person watches a nearby pedestrian stroll into the path of an oncomingvehicle. In both instances the callous bystander can foresee serious injury ifhe does nothing. He does not control the source of the danger, but he hascontrol of the means to avert a dreadful accident. The child or pedestrian isdependent on the bystander: the child is unable to save himself, and thepedestrian is unaware of his danger. The prospective injury is out of allproportion to the burden imposed by having to take preventive steps. All thatwould be called for is the simplest exertion or a warning shout.

Despite this, the recognised legal position is that the bystander does notowe the drowning child or the heedless pedestrian a duty to take steps to savehim. Something more is required than being a bystander. There must be someadditional reason why it is fair and reasonable that one person should beregarded 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 beregarded as carrying obligations as well as rights.

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Omissions and proximity

Norfolk Council was more than a bystander. The council had astatutory power to remove this source of danger, although it was not under astatutory duty to do so. Before 1978 the accepted law was that the councilcould be under no common law liability for failing to act. A simple failureto exercise a statutory power did not give rise to a common law claim fordamages: see East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74.The decision in Anns v. Merton London Borough Council [1978] A.C. 728liberated the law from this unacceptable yoke. This was the great contributionAnns made to the development of the common law.

However, as with Hedley Byrne & Co Ltd v. Heller & Partners Ltd.[1964] A.C. 465, another notable development in the law of negligence, sowith Anns: a coherent, principled control mechanism has to be found forlimiting this new area of potential liability. The powers conferred on publicauthorities 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 thatgood.

In Anns v. Merton London Borough Council [1978] A.C. 728Lord Wilberforce propounded a two stage test for the existence of a duty.This test is now generally regarded with less favour than the familiar tripartiteformulation subsequently espoused in Caparo Industries Plc. v. Dickman[1990] 2 A.C. 605, 617, 618: (1) foreseeability of loss, (2) proximity and (3)fairness, justice and reasonableness. The difference is perhaps more adifference of presentation and emphasis than substance. Clearly,foreseeability of loss is by itself an insufficient foundation for a duty to takepositive action. Close attention to the language of Lord Wilberforce atpp. 751-752, with its reference to a sufficient relationship of proximity orneighbourhood, shows that he regarded proximity as an integral requirement:see also McLoughlin v. O'Brian [1983] A.C. 410, 420, 421, perLord Wilberforce, and Yuen Kun Yeu v. Attorney-General of Hong Kong[1988] A.C. 175, 191, per Lord Keith of Kinkel.

The Caparo tripartite test elevates proximity to the dignity of aseparate heading. This formulation tends to suggest that proximity is aseparate ingredient, distinct from fairness and reasonableness, and capable ofbeing identified by some other criteria. This is not so. Proximity is aslippery word. Proximity is not legal shorthand for a concept with its own,objectively identifiable characteristics. Proximity is convenient shorthand fora relationship between two parties which makes it fair and reasonable oneshould owe the other a duty of care. This is only another way of saying thatwhen assessing the requirements of fairness and reasonableness regard mustbe had to the relationship of the parties. As McLachlin J. said in the Supreme

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Court of Canada, in Norsk Pacific Steamship Co. Ltd. v. Canadian NationalRailway Co. [1992] 1 S.C.R. 1021, 1152:

". . .the concept of proximity may be seen as an umbrella,covering a number of disparate circumstances in which the relationshipbetween the parties is so close that it is just and reasonable to permitrecovery in tort."

Similarly, in his valuable exposition in Sutherland Shire Council v.Heyman (1985) 157 C.L.R. 424, 496, Deane J. in the High Court of Australiaobserved that Lord Atkin's notion of proximity in Donoghue v. Stevenson[1932] A.C. 562 "involved both an evaluation of the closeness of therelationship and a judgment of the legal consequences of that evaluation."Deane J. added, at p. 498:

"Given the general circumstances of a case in a new ordeveloping area of the law of negligence, the question what (if any)combination or combinations of factors will satisfy the requirement ofproximity is a question of law to be resolved by the processes of legalreasoning, induction and deduction ... the identification of the contentof that requirement hi such an area should not be either ostensibly oractually divorced from notions of what is 'fair and reasonable' ... orfrom the considerations of public policy which underlie and enlightenthe existence and content of the requirement."

Despite this, the pithy tripartite formulation has advantages. Therelationship between the parties is an important ingredient in the overallassessment. The tripartite test is useful in focusing attention specifically on

this feature and also in clearly separating this feature from foreseeability ofdamage. But the application of the same tripartite test, both to a duty to takecare when acting and a duty to take positive action, should not be allowed tomask the difference between the two duties. As already seen, the test offairness and reasonableness is more difficult to satisfy with a duty to act. Thisis especially so when the subject matter is potential financial loss, rather thanphysical injury or damage. The reluctance to impose a duty to act is evengreater when the loss threatened is financial.

The basic test of fair and reasonable is itself open to criticism forvagueness. Indeed, it as an uncomfortably loose test for the existence of alegal duty. But no better or more precise formulation has emerged so far, anda body of case law is beginning to give the necessary further guidance ascourts 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 foromissions before turning in more detail to the position of public authorities.Liability for omissions gives rise to a problem not present with liability for

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careless acts. He who wishes to act must act carefully or not at all. Aproducer of ginger beer must adopt a safe manufacturing process. If thiswould be uneconomic, he ought not to carry on the business. With liabilityfor omissions, however, a person is not offered a choice. The law compelshim 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 observedin Goldman v. Hargrave [1967] 1 A.C. 645, 663, what is reasonable to oneman may be very unreasonable or ruinous to another.

The solution adopted is to have regard to the circumstances of theindividual. He must act as would a reasonable person in his position. Thestandard of reasonableness is to be measured by what may reasonably beexpected of the defendant in his individual circumstances. Where action callsfor expenditure, the court if necessary will have regard to the financialresources of the defendant. The law does not always shrink away from suchan investigation and regard itself as unable ever to make an assessment ofcompeting demands for money.

Public authorities and liability for omissions

The liability of public authorities for negligence in carrying outstatutory responsibilities is a knotty problem. The decision of this House inAnns v. Merton London Borough Council [1978] A.C. 728 articulated aresponse to growing unease over the inability of public law, in someinstances, to afford a remedy matching the wrong. Individuals may suffer lossthrough the carelessness of public bodies in carrying out their statutoryfunctions. Sometimes this evokes an intuitive response that the authorityought to make good the loss. The damnified individual was entitled to expectbetter from a public body. Leaving the loss to lie where it falls is not alwaysan acceptable outcome. The authority did not create the loss, but it failed todischarge its statutory responsibilities with reasonable care. Had it behavedproperly, the loss would not have occurred.

Expressed in traditional tort terms, the loss in this type of case arisesfrom a pure omission. Any analysis must recognise this. But the omissionmay also constitute a breach of the authority's public law obligations. As willbe seen, the present case is an example of this, even though the relevantstatutory 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 legalduty to take action. The authority was already so obliged, as a matter ofpublic law. The question, rather, is what should be the remedy for thebreach.

Anns showed that a remedy in the form of an award of damages ispossible without confusing the uneasy divide between public and private law.The common law is still sufficiently adaptable. The common law has long

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recognised that in some situations there may be a duty to act. So a concurrentcommon law duty can carry the strain, without distortion of principle.

The Anns principle has to cope with a complication absent from otherlandmark decisions such as Donoghue v. Stevenson [1932] A.C. 562 andHedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465.Typically, although not necessarily, the effect of an application of the Annsprinciple will be to bring home against an authority a liability for damages forfailure to perform public law obligations created by statute. Thus in Annscases, unlike in Donoghue v. Stevenson and Hedley Byrne, it is necessary toconsider the legislative intention. Resort to Anns is not required when

Parliament created a statutory duty and also, expressly or impliedly, a causeof action for breach of the duty. The problem only arises outside the areawhere Parliament has willed that the individual shall have a remedy indamages. This gives rise to the difficulty of how much weight should beaccorded the fact that, when creating the statutory function, the legislatureheld back from attaching a private law cause of action. The law mustrecognise the need to protect the public exchequer as well as private interests.

It is essentially on this latter point that so many divergent views havebeen expressed, mainly in articles and textbooks. There is general agreementthat the law is unsettled, with a different judicial emphasis between thecommon law countries. There is no consensus on what the law should be:see, for instance, Arrowsmith, Civil Liability, 176-185; S.H. Bailey and M.J.Bowman, "The Policy/Operation Dichotomy - A Cuckoo in the Nest" [1986]C.L.J. 430; Sir Gerard Brennan, "Liability in Negligence of PublicAuthorities: The Divergent Views" (1990) 48 Advocate 842; Buckley, TheModern Law of Negligence, 2nd ed. (1993), pp. 229-247; and Craig,Administrative Law, 3rd ed. (1994), pp. 618-632, and P.P. Craig,"Negligence in the Exercise of a Statutory Power" (1978) 94 L.Q.R. 428; deSmith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed.(1995), pp. 774-782; J.J. Doyle Q.C., Solicitor-General for South Australia,"The Liability of Public Authorities" (1994) 2 Tort L.Rev. 189; Fleming, TheLaw of Torts, 8th ed. (1992), pp. 146-159; Hogg, 17 Monash U.L.R. 285;Justice David Malcolm, "The Liability and Responsibility of LocalGovernment Authorities: Trends and Tendencies" Austr B.R. 209; Hon. JohnSopinka, Justice, Supreme Court of Canada, "The Liability of PublicAuthorities: Drawing the Line" (1993) 1 Tort L.Rev. 123; Stephen Todd,"The Negligence Liability of Public Authorities: Divergence in the CommonLaw" (1986) 102 L.Q.R. 370; Smith and Peter Burns, "Donoghue v.Stevenson - The Not So Golden Anniversary" (1983) 46 M.L.R. 147; Wadeand Forsyth, Administrative Law, 7th ed., (1994), pp. 771-783; and Winfieldand Jolowicz, Tort, 14th ed., (1994), pp. 78-90, 102-103.

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The statutory framework

Against this background I must now map the route which as a matterof legal analysis I believe is applicable in the present case. Public authoritiesdischarging statutory functions operate within a statutory framework. Sincethe will of the legislature is paramount in this field, the common law should

not impose a concurrent duty inconsistent with this framework. A commonlaw duty must not be inconsistent with the performance by the authority of itsstatutory duties and powers in the manner intended by Parliament, or contraryin any other way to the presumed legislative intention.

In some respects the typical statutory framework makes the step to acommon 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 authorityis entrusted and charged with responsibilities, for the public good. Thepowers are intended to be exercised in a suitable case. Compelling a publicauthority to act does not represent an intrusion into private affairs in the sameway as when a private individual is compelled to act.

The matter goes much further. Sometimes a concurrent common lawduty would not impose any additional burden, in the sense of requiring anauthority to act differently from the course already required by its public lawobligations. In such cases a major impediment to the existence of a commonlaw duty to act is not present. This calls for elaboration.

The scope of a common law duty to take positive action, as much asany other common law duty of care, depends upon the circumstances givingrise to the duty. A concurrent common law duty cannot require the authorityto act outside its statutory powers. But the superimposed common law dutymay sometimes curtail the freedom of an authority's actions within its powers.There may have been some dealing between the authority and the plaintiff, orsome other special circumstance, from which the law will properly concludethat the authority has assumed an obligation to the plaintiff to act in aparticular way within the scope of its powers. An example of this isParramatta City Council v, Lutz (1988) 12 N.S.W.L.R. 293, where thecouncil told the plaintiff it would be carrying out an order for the demolitionof adjoining derelict property. Or the special circumstance may be moregeneral, as where an authority has habitually exercised a power and, inconsequence, a person or class of persons has to the knowledge of theauthority reasonably relied on the authority continuing to follow its normalpractice.

The present case is not of this kind. The plaintiff was in no differentposition from any other road user on any public road. Nothing had occurredto impose on the council an obligation to act otherwise than in conformitywith its public law obligations. That is the first step.

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The next step is to note that the council's existing public lawobligations required the council to attain the standards expected of anyreasonable highway authority in the circumstances. A statutory discretioncannot properly be exercised in an unreasonable manner, that is, in a way nosensible authority with a proper appreciation of its responsibilities would act:see Secretary of State for Education and Science v. Tameside MetropolitanBorough Council [1977] A.C. 1014, 1064, per Lord Diplock.

Thus, and this is the third step, if there were a common law obligationin the present case, sounding in damages, the extent of the obligation wouldmarch hand in hand with the authority's public law obligations. This is acardinal feature of the present case. The council's public law obligation wasto act as a reasonable authority. The common law obligation would be to thesame effect.

The final step, and this goes to breach, is to note that Norfolk Councilacted in a way no reasonable authority would have done. If there is acommon law duty, breach of the duty is not disputed. With knowledge of thedanger the council decided to act. It then failed to proceed with reasonablediligence. The failure to proceed was not an exercise of discretion by thecouncil. 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 toproceed to implement the decision. Had the council acted as any reasonableauthority would, that is what would have happened. The council failed tofulfil its public law obligations just as much as if it were in breach of astatutory duty.

Hence the conclusion, that a concurrent common law duty would notimpose on the council any greater obligation to act than the obligation alreadyimposed by its public law duties. The common law duty would impose, nota duty to act differently, but a liability to pay damages if the council failed toact as it should. This is the consequence which considerations of proximitymust especially address in the present case. Was the relationship between theparties such that it is fair and reasonable for the council to be liable indamages for failing to behave in a way which merely corresponds to its publiclaw obligations? In this type of case, therefore, the reluctance of the commonlaw to impose a duty to act is not in point. What is in point, in effect thoughnot in legal form, is an obligation to pay damages for breach of public lawobligations.

This leads naturally to a further feature of the typical statutoryframework. This feature points away from public bodies being subject toconcurrent common law obligations. When conferring the statutory functionsParliament stopped short of imposing a duty in favour of the plaintiff. Thisis so when there is a statutory duty not giving rise to a cause of action forbreach of the duty. This is even more marked when Parliament conferred apower. Without more it would not be reasonable for the common law to

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impose a duty, sounding in damages, which Parliament refrained fromimposing.

For this reason there must be some special circumstance, beyond themere existence of the power, rendering it fair and reasonable for the authorityto be subject to a concurrent common law duty sounding in damages. Thisspecial circumstance is the foundation for the concurrent common law duty toact, owed to a particular person or class of persons. It is the presence of thisadditional, special circumstance which imposes the common law duty and alsodetermines its scope. Viewed in this way there is no inconsistency inprinciple between the statutory framework set up by Parliament and a parallelcommon law duty.

Statutory powers and proximity

What will constitute a special circumstance, and in combination withall the other circumstances amount to sufficient proximity, defies definitionand exhaustive categorisation save in the general terms already notedregarding proximity. The special circumstance must be sufficientlycompelling to overcome the force of the fact that when creating the statutoryfunction Parliament abstained from creating a cause of action, sounding indamages, for its breach.

Factors to be taken into account include: the subject matter of thestatute (for instance, the regulatory power in Yuen Kun Keu v. Attorney-General of Hong Kong [1988] A.C. 175,195, was quasi-judicial, with a rightof appeal); the intended purpose of the statutory duty or power (in Governorsof the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985]A.C. 210 and Murphy v. Brentwood District Council [1991] 1 A.C. 398, 408,public health measures were not intended to safeguard owners of buildingsagainst financial loss); whether a concurrent common law duty might inhibitthe proper and expeditious discharge of the statutory functions (such as the

protection of children at risk, in X (minors) v. Bedfordshire County Council[1995] 2 A.C. 633, 749-751); the nature of the loss (whether physical injuryor purely financial); the ability of the plaintiff to protect himself (in Just v.British Columbia (1989) 64 D.L.R. (4th) 689 a road user was injured by arock falling onto his car); the adequacy of the public law remedies (Rowlingv. Takaro Properties Ltd. [1988] A.C. 473, 501-502, and Jones v. Departmentof Employment [1989] Q.B. 1, 22, 24-25); and the presence or absence of aparticular reason why the plaintiff was relying or dependent on the authority(as in Invercargill City Council v. Hamlin [1996] 2 W.L.R. 367, and see theNew Zealand Court of Appeal at [1994] 3 N.Z.L.R. 513, 519, 524-525, and530). This list is by no means exhaustive, and each case will turn upon theparticular combination of factors present or absent.

Reliance calls for special mention. By reliance I mean that theauthority can reasonably foresee that the plaintiff will reasonably rely on the

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authority acting in a particular way. Reliance is a useful aid here, as in thefield of negligent misstatement, because it leads easily to the conclusion thatthe authority can fairly be taken to have assumed responsibility to act in aparticular 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 maybe expected to act in reliance on the authority exercising its powers. InSutherland Shire Council v. Heyman, 157 C.L.R. 424, 464, Mason J. treateddependence as having equivalent effect in some circumstances:

"... there will be cases in which the plaintiff's reasonablereliance will arise out of a general dependence on an authority'sperformance of its function with due care, without the need forcontributing conduct on the part of a defendant or action to hisdetriment on the part of a plaintiff. Reliance or dependence in thissense is in general the product of the grant (and exercise) of powersdesigned to prevent or minimise a risk of personal injury or disability,recognised by the legislature as being of such magnitude or complexitythat individuals cannot, or may not, take adequate steps for their ownprotection. This situation generates on one side (the individual) ageneral expectation that the power will be exercised and on the otherside (the authority) a realisation that there is a general reliance ordependence on its exercise of power. . ."

Reliance, or dependence, may be a sufficient basis but will not alwaysbe so. Everyone is entitled to expect that an authority will behave as areasonable authority, in accordance with its public law obligations, butreliance of this character will usually not be enough. Otherwise a concurrentcommon law duty might readily arise in almost every case. Nor, conversely,is reliance a necessary ingredient in all cases. Proximity cannot be confinedby fixed restraints applicable in all cases.

Some statutory powers, of their nature, are less susceptible to aconcurrent common law duty than others. More is needed by way of a specialcircumstance. This does not mean that powers are capable of being assignedto fixed categories. There are no hard and fast boundary lines here. Theapproach, rather, is that as the part played by broad discretionaryconsiderations in the exercise of the power grows, the less readily will acommon law duty be superimposed, and vice versa. At the discretionary edgeof the spectrum will be powers whose nature and purpose make it difficult toenvisage any likely circumstances where a common law duty, sounding indamages, could be superimposed. A local authority's powers to decide whatschools there should be, and where, and of what type, may be an example ofthis. At the other edge of the spectrum will be powers where comparativelylittle extra may be needed to found a common law duty owed to a particularperson or class of persons. A power to remove dangers from public placesmust be near this edge of the spectrum. A power to control air safety may beanother example, as in Swanson Estate v. Canada (1991) 80 D.L.R (4th)741.

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Some decisions since Anns v. Merton London Borough Council [1978]A.C. 728 have gone further and identified a "no go" area for concurrentcommon law duties: see Anns, at p. 754; Sutherland Shire Council v. Heyman,157 C.L.R. 424, 469, per Mason J.; Rowling v. Takaro Properties Ltd.[1988] A.C. 473, 501; and X (Minors) v. Bedfordshire County Council [1995]2 A.C. 633, 738. In practice the two approaches will usually reach the sameconclusion. My preference is for the more open-ended approach. Theexclusionary approach presupposes an identifiable boundary, between policyand other decisions, corresponding to a perceived impossibility for the courtto handle policy decisions. But the boundary is elusive, because thedistinction is artificial, and an area of blanket immunity seems undesirable andunnecessary. It is undesirable in principle that in respect of certain types ofdecisions the possibility of a concurrent common law duty should beabsolutely barred, whatever the circumstances. An excluded zone is alsounnecessary, 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 commonlaw duty were held to exist in an area of broad policy. Courts are well ableto recognise that reasonable people can reach widely differing conclusionswhen making decisions based on social, political or economic grounds: see,for instance, Reg. v. Secretary of State for the Environment, Ex parteNottingham County Council [1986] A.C. 240. Similarly with competingdemands for money. Indeed, the courts have recognised that sometimes itmay be necessary in private law to look into competing demands for availablemoney. As already noted, this is inherent in the very concept of a commonlaw duty to take positive action. Thus this feature does not of itself excludethe existence of a concurrent common law duty.

The Highways Act

I turn to apply these principles to the present case. The Highways Act1980 provides that the authority for a highway maintainable at public expenseis under a duty to maintain the highway: section 41. The duty is not absolute.In an action against the authority in respect of damage resulting from failureto maintain a highway, it is a defence to prove that the authority had takensuch care as was reasonable to secure that the relevant part of the highwaywas not dangerous for traffic: section 58.

That concerns the state of repair of the highway itself. A highway maybe dangerous for other reasons. Highway authorities have a panoply ofpowers enabling them to deal with dangers, obstructions and inconveniencesarising in many different ways. A projection from a building may be anobstruction to safe passage. Overhanging hedges or trees may endanger orobstruct the passage of vehicles or pedestrians. A dead or diseased tree maybe likely to cause danger by falling on the road. Adjoining land may containan inadequately fenced source of danger. The forecourt of premises abuttingon a street may be a source of danger. In each instance the highway or otherauthority has power to require the owner or occupier of the adjoining land to

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take the necessary action to get rid of the source of danger: see sections 152,154, 165, and 166. Section 79, with which this appeal is concerned, isanother such power. Sometimes the authority has power to do the work if thenotice is not complied with, sometimes not. Section 79 is an instance of thelatter.

Known dangers and road users

I turn to the crucial question: does a highway authority, aware of adanger, owe to road users a common law duty to act as would a reasonableauthority in the circumstances, and hence be potentially liable in damages ifit 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 andsuch a liability would indeed be fair and reasonable. First, the subject matteris physical injury. The existence of a source of danger exposes road users toa risk of serious, even fatal, injury. Road users, especially those unfamiliarwith the stretch of road, are vulnerable. They are dependent on highwayauthorities fulfilling their statutory responsibilities. Second, the authorityknows of the danger. When an authority is aware of a danger it hasknowledge road users may not have. It is aware of a risk of which road usersmay be ignorant.

Third, in the present case, had the authority complied with its publiclaw obligations the danger would have been removed and the accident wouldnot have happened. In such a case the authority can properly be regarded asresponsible for the accident just as much as if its employees had carried outroadworks carelessly and thereby created a danger. There is no sensibledistinction between an authority's liability for its workmen in the formerinstance and its liability if, in breach of its public law obligations, office stafffail to do their jobs properly and an avoidable road accident takes place inconsequence.

Fourth, this is an area where Parliament has recognised that publicauthorities should be liable in damages for omissions as well as actions. In1961 Parliament abrogated the old rule which exempted the inhabitants atlarge and their successors from liability for non-repair of highways (Highways(Miscellaneous Provisions) Act 1961). A highway authority is liable indamages for failing to take reasonable care to keep the highway safe. But nosound distinction can be drawn between dangers on the highway itself, wherethe authority has a statutory duty to act, and other dangers, where there is astatutory power but not a statutory duty. The distinction would notcorrespond to the realities of road safety. On the council's argument ahighway authority would be liable if it carelessly failed to remove a dead treefallen onto the road, but not liable if it carelessly failed to act after learningof a diseased overhanging tree liable to fall at any moment. Such a legalistic

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distinction does not commend itself. It would be at variance with ordinarypersons' expectations and perceptions.

Fifth, the purpose of the statutory powers is to protect road users byenabling highway authorities to remove sources of danger, but public law isunable to give an effective remedy if a road user is injured as a result of anauthority's breach of its public law obligations. A concurrent common lawduty is needed to fill the gap.

Sixth, a common law duty in the present case would not represent anincursion into a wholly novel field. As already noted, an occupier owes aduty to take positive action to protect his neighbours. Until subsumed inlegislation, an occupier also owed common law duties to safeguard those whocome onto his property, whether lawfully or unlawfully. Although a highwayauthority does not occupy the highway, there is a certain resemblance. Ahighway authority has, and alone has, the capacity to remove what wouldotherwise be a source of physical danger to users of property.

Seventh, for the reason given earlier a common law duty would notimpose on the authority any more onerous obligation, so far as its behaviouris concerned, than its public law obligations. Roch L.J., [1994] 1 W.L.R.1124, 1140, encapsulated the practical effect:

"[The highway authority's] assessment whether a danger exists,and, if it does, the extent of that danger and the weight that the dangershould be given against the cost of rendering the highway reasonablysafe and its assessment of the priority to be given to this particular partof the highway as against other parts of the highway under itsjurisdiction are all matters for the highway authority and its decisionson such issues will not be easily overturned in the courts."

Finally, and critically, the consequence of a concurrent common lawduty would be that in the event of a breach the loss, so far as measurable interms of money, would fall on the highway authority or, if insured, onhighway authorities generally. Sometimes an injured road user, whetherdriver 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 isanything to be gained, any social utility, in shifting the financial loss fromroad users to a highway authority. But there can be no room for doubt whenthe injured road user has no such claim. This may well happen. Then it doesseem eminently fair and reasonable that the loss should fall on the highwayauthority and not the hapless road user. And if the existence of a duty of carein all cases, in the shape of a duty to act as a reasonable authority, has a

salutary effect on tightening administrative procedures and avoiding anotherneedless road tragedy, this must be in the public interest.

In my view these factors, taken together, constitute specialcircumstances of sufficient weight for the crucial question to be answered yes.

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There is here sufficient proximity. I reserve my view on what the positionwould be if an authority did not know, but ought to have known, of theexistence of a danger.

I must mention one last matter as a footnote. The council contendedthat a common law duty would achieve little or nothing. Highway authoritieswould qualify their decisions to act, lest they expose themselves more readilyto damages claims. This is not an impressive argument. Public authoritiesare responsible bodies which normally discharge their duties conscientiouslyand carefully. There is no reason for thinking they would indulge in artificeto conceal their true decisions. Further, the common law duty does not stemfrom the decision to act. The authority's decision to act does not create acommon law duty where otherwise none existed. Where there is a decisionto act, the decision fixes the starting point of the inquiry into whether therehas been a breach of the common law duty, viz, a failure to act as areasonable authority. It is the starting point, because it is only afterwardsthere was any failure to act. If there was no decision to act, the inquirywould start at an earlier stage.

I would dismiss this appeal.

LORD HOFFMANN

My Lords,

1. The Accident

Late at night in December 1988, the plaintiff Mr. Stovin was riding hismotorcycle along Station Road, Wymondham. A car driven by the defendant

Mrs Wise emerged from a junction into his path. He was unable to stop intime and there was a collision in which he suffered serious injuries.

His Honour Judge Crawford Q.C. found that Mrs Wise had not beenkeeping a proper look out and was 70 per cent. to blame for the accident. Heattributed the other 30 per cent. of liability to the Norfolk County Council,which Mrs Wise had joined as third party. The Council was the localhighway authority. The judge found that it had known that the junction wasdangerous 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, alongwhich Mrs Wise had been driving, joined Station Road at an acute angle. Adriver who, like Mrs Wise, wanted to turn right, had to make a turn of about150 degrees across the traffic coming from her right. What made matters

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worse was that the view to the right was obstructed by a bank of earth toppedby a fence. Mrs Wise could not see what was coming, apart from lightthrown forward by approaching headlights, until she had actually nosed outinto Station Road.

There had been accidents at the junction in 1976, 1982 and in March1988, when someone coming out of Cemetery Road had collided with a policecar. Three accidents in twelve years was not however enough to give thejunction the status of a "cluster site" or accident black spot in the Council'scomputerised records. That needed at least five personal injury accidentswithin three years. It did not therefore merit special attention under theCouncil's policy for dealing with hazardous stretches of road. But theWymondham Road Safety Committee had taken up the matter about a yearbefore Mr. Stovin's accident. In December 1987 the Committee approachedBritish Rail, which owned the land upon which stood the obstructing bank andfence. British Rail's Area Civil Engineer wrote to Mr. Longhurst, theCouncil's Divisional Surveyor, suggesting that the junction should berealigned. Mr. Longhurst was in charge of road maintenance in southNorfolk. His traffic movement expert, Mr. Deller, whom he sent to inspect,thought that the best solution was to remove the bank. Mr. Longhurstaccepted his advice and wrote to British Rail, asking permission to do thework and offering to pay the cost.

Unfortunately British Rail did not answer the letter and nothing wasdone to follow it up. A month or two later Mr. Deller was transferred toother work. By the time of Mr. Stovin's accident, nothing had happened.

3. The Trial

The question of law at the trial was whether the Council, as highwayauthority, owed a duty to users of the highway in respect of the safety of thejunction. At first Mr. Stovin relied primarily upon the Council's statutoryduty to maintain the highway: see section 41 of the Highways Act 1980. Butthe judge rejected this claim on the ground that the bank was not part of thehighway. It was on land adjoining the highway. This decision was affirmedby the Court of Appeal and is not challenged before this House.

The alternative claim was that the Council owed Mr. Stovin a duty ofcare at common law. The judge said that a "neighbour relationship" asdescribed by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 existedbecause the Council, as highway authority, should have had users of thehighway in contemplation as affected by its operations and knew that the lay-out of the junction was dangerous. He then went on to consider whether therewas "proximity" between the highway authority and Mr. Stovin. He took intoaccount that the kind of damage which should have been foreseen was physicalinjury. He was not therefore troubled by any of the problems about the dutyof care in respect of economic loss which have so perplexed the courts overthe past few decades. The junction was in his view exceptionally dangerous

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and the Council through its officers actually knew of the risk. In addition, theCouncil was a public authority. He said, quoting Du Parq L.J. in Kent v.East Suffolk Rivers Catchment Board [1940] 1 K.B. 319, 338, that it owed aduty to the public to strike a "balance between the rival claims of efficiencyand thrift." In this case, he said, there was no question of choosing thriftbecause 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 hadno difficulty in finding that there had been a breach. Mr. Deller had said thathe had not regarded the matter as urgent. But the judge held that he had beenmistaken. 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 withgreater despatch. But for his transfer to other duties, the work would havebeen implemented before Mr. Stovin's accident. It was a breach of duty forthe Council not to have done it.

4. Acts and omissions.

The judge made no express mention of the fact that the complaintagainst the Council was not about anything which it had done to make thehighway dangerous but about its omission to make it safer. Omissions, likeeconomic loss, are notoriously a category of conduct in which Lord Atkin'sgeneralisation in Donoghue v. Stevenson [1932] A.C. 562 offers limited help.In the High Court of Australia in Hargrave v. Goldman (1963) 110 C.L.R.40, 65-66, Windeyer J. drew attention to the irony in Lord Atkin's allusion,in formulating his "neighbour" test, to the parable of the Good Samaritan([1932] A.C. 562, 580):

"The priest and the Levite, when they saw the wounded man by theroad, passed by on the other side. He obviously was a person whomthey had in contemplation and who was closely and directly affectedby their action. Yet the common law does not require a man to act asthe Samaritan did."

A similar point was made by Lord Diplock in Dorset Yacht Co. Ltd. v. HomeOffice [1970] A.C. 1004, 1060. There are sound reasons why omissionsrequire different treatment from positive conduct. It is one thing for the lawto say that a person who undertakes some activity shall take reasonable carenot to cause damage to others. It is another thing for the law to require thata person who is doing nothing in particular shall take steps to prevent anotherfrom suffering harm from the acts of third parties (like Mrs Wise) or naturalcauses. One can put the matter in political, moral or economic terms. Inpolitical terms it is less of an invasion of an individual's freedom for the lawto require him to consider the safety of others in his actions than to imposeupon him a duty to rescue or protect. A moral version of this point may becalled the "why pick on me?" argument. A duty to prevent harm to others orto render assistance to a person in danger or distress may apply to a large andindeterminate class of people who happen to be able to do something. Whyshould one be held liable rather than another? In economic terms, the

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efficient allocation of resources usually requires an activity should bear itsown costs. If it benefits from being able to impose some of its costs on otherpeople (what economists call "externalities,") the market is distorted becausethe activity appears cheaper than it really is. So liability to pay compensationfor loss caused by negligent conduct acts as a deterrent against increasing thecost of the activity to the community and reduces externalities. But there isno similar justification for requiring a person who is not doing anything to

spend money on behalf of someone else. Except in special cases (such asmarine salvage) English law does not reward someone who voluntarily confersa benefit on another. So there must be some special reason why he shouldhave to put his hand in his pocket.

In Hargrove v. Goldman, 110 C.L.R. 40, 66 Windeyer J. said:

"The trend of judicial development in the law of negligence hasbeen ... to found a duty to take care either in some task undertaken,or in the ownership, occupation or use of land or chattels."

There may be a duty to act if one has undertaken to do so or induceda person to rely upon one doing so. Or the ownership or occupation of landmay give rise to a duty to take positive steps for the benefit of those whocome upon the land and sometimes for the benefit of neighbours. In Hargrovev. Goldman the High Court of Australia held that the owner and occupier ofa 600 acre grazing property in Western Australia had a duty to take reasonablesteps to extinguish a fire, which had been started by lightning striking a treeon his land, so as to prevent it from spreading to his neighbour's land. Thisis 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 Ihave mentioned are countered by the fact that the duties are mutual. Onecannot tell where the lightning may strike and it is therefore both fair andefficient to impose upon each landowner a duty to have regard to the interestsof his neighbour. In giving the advice of the Privy Council affirming thedecision (Goldman v. Hargrove [1967] 1 A.C. 645) Lord Wilberforceunderlined the exceptional nature of the liability when he pointed out that thequestion of whether the landowner had acted reasonably should be judged byreference to the resources he actually had at his disposal and not by somegeneral or objective standard. This is quite different from the duty owed bya person who undertakes a positive activity which carries the risk of causingdamage to others. If he does not have the resources to take such steps as areobjectively reasonable to prevent such damage, he should not undertake thatactivity at all.

5. Omissions in the Court of Appeal

The Court of Appeal did advert to the question of omissions. Themain ground upon which they affirmed the judge's decision was that theposition of the Council as a public authority gave rise to a common law dutyin the circumstances to safeguard users of the junction from harm. I shall

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have to return to this central question at some length. But Kennedy LJ. andRoch L.J. (with whom Nourse LJ. agreed) each made additional pointsindependent of the public nature of the highway authority. Kennedy L.J. said([1994] 1 W.L.R. 1124, 1138) that the case was not one of pure omission:

"Here the highway authority did not simply fail to act. It decidedpositively to proceed by seeking agreement from British Rail, and itsfailure to pursue that course is not an omission on which it can rely toescape liability, any more than a car driver could escape liabilitysimply because his breach of duty consisted in a failure to apply thebrakes."

I do not find this analogy convincing. Of course it is true that theconditions necessary to bring about an event always consist of a combinationof acts and omissions. Mr. Stovin's accident was caused by the fact that MrsWise drove out into Station Road and omitted to keep a proper look-out. Butthis does not mean that the distinction between acts and omissions ismeaningless or illogical. One must have regard to the purpose of thedistinction as it is used in the law of negligence, which is to distinguishbetween regulating the way in which an activity may be conducted andimposing a duty to act upon a person who is not carrying on any relevantactivity. To hold the defendant liable for an act, rather than an omission, itis therefore necessary to be able to say, according to common sense principlesof causation, that the damage was caused by something which the defendantdid. If I am driving at 50 miles an hour and fail to apply the brakes, themotorist with whom I collide can plausibly say that the damage was caused bymy driving into him at 50 miles an hour. But Mr. Stovin's injuries were notcaused by the negotiations between the Council and British Rail or anythingelse which the Council did. So far as the Council was held responsible, it wasbecause it had done nothing to improve the visibility at the junction.

Roch L.J. made a different point. Accepting that the alleged breachof duty was an omission, he drew an analogy between the position of thehighway authority and an occupier of premises in relation to visitors comingupon his land. Occupation of premises is, as was said in Hargrave v.Goldman, 110 C.L.R. 40, one of the exceptional grounds upon which theremay be a duty to take positive steps to protect others from harm. ThereforeRoch L.J. thought that the highway authority should be equally liable. But anoccupier can ordinarily limit his liability by deciding whom he will allow tocome upon his land. He has a limited duty to trespassers and can take stepsto keep them out. An occupier of land over which there is a public right ofway cannot stop anyone from using it. So in McGeown v. Northern IrelandHousing Executive [1995] 1 A.C. 233 this House decided that an occupier of

land over which there is a public right of way owes no duty to take reasonablesteps to make it safe for members of the public who use it. Because he hasno choice as to whether to allow them upon his land or not he should not berequired to spend money for their benefit. Lord Keith of Kinkel, at p. 243:

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"Rights of way pass over many different types of terrain, and it wouldplace an impossible burden upon landowners if they not only had tosubmit to the passage over them of anyone who might choose toexercise the right but also were under a duty to maintain them in a safecondition."

It therefore seems clear that if Station Road and Cemetery Road had beenhighways over private land which happened to be owned and occupied by theNorfolk County Council instead of being repairable at the public expense,there would have been no liability. The analogy of an occupier is thereforeinsufficient for the purpose of imposing liability.

6. Public authorities.

The argument that the Council had a positive duty to take action givingrise to a claim for compensation in tort must therefore depend, as the judgeand the Court of Appeal recognised, upon the public nature of its powers,duties and funding. The argument is that while it may be unreasonable toexpect a private landowner to spend money for the benefit of strangers whohave the right to cross his land, the very purpose of the existence of a publicauthority like the Council is to spend its resources on making the roadsconvenient and safe. For that purpose it has a large battery of powers in theHighways Act 1980. These do not actually include a power which would haveenabled the Council to go upon the land of British Rail and remove the bankof earth. But there is power under section 79 to serve a notice requiring thebank to be removed. The power is conferred for the purpose of "theprevention of danger arising from obstruction to the view of persons using thehighway." Although the allegation is not that the Council failed to use thispower (it probably would not have been necessary to do so), its existenceshows that one of the purposes for which Parliament contemplated that thehighway authority would spend its money was the removal of exactly the kindof obstructions which caused the accident in this case.

It is certainly true that some of the arguments against liability foromissions do not apply to public bodies like a highway authority. There is no

"why pick on me?" argument: as Kennedy L.J. said, at p. 1139, the highwayauthority alone had the financial and physical resources, as well as the legalpowers, to eliminate the hazard. But this does not mean that the distinctionbetween acts and omissions is irrelevant to the duties of a public body or thatthere are not other arguments, peculiar to public bodies, which may negativethe existence of a duty of care.

(a) Negligent conduct in the exercise of statutory powers.

Since Mersey Docks and Harbour Board Trustees v. Gibbs (1866) L.R.1 H.L. 93 it has been clear law that in the absence of express statutoryauthority, a public body is in principle liable for torts in the same way as aprivate person. But its statutory powers or duties may restrict its liability.

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For example, it may be authorised to do something which necessarily involvescommitting what would otherwise be a tort. In such a case it will not beliable: Allen v. Gulf Oil Refining Ltd. [1981] A.C. 1001. Or it may havediscretionary powers which enable it to do things to achieve a statutorypurpose notwithstanding that they involve a foreseeable risk of damage toothers. In such a case, a bona fide exercise of the discretion will not attractliability: X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 andDorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004.

In the case of positive acts, therefore, the liability of a public authorityin tort is in principle the same as that of a private person but may be restrictedby 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 respectof an omission to remove the hazard at the junction, the duty of the highwayauthority is enlarged by virtue of its statutory powers. The existence of thestatutory powers is said to create a "proximity" between the highway authorityand 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 BoroughCouncil [1978] A.C. 728, there was no authority for treating a statutorypower as giving rise to a common law duty of care. Two cases in particularwere thought to be against it. In Sheppard v. Glossop Corporation [1921] 3K.B. 132 the council had power to light the streets of Glossop. But theirpolicy was to turn off the lamps at 9 p.m. The plaintiff was injured when hefell 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 councilowed him no duty of care. Atkin L.J. said, at p. 150:

"[The local authority] is under no duty to act reasonably in decidingwhether it shall exercise its statutory powers or not, or in deciding towhat extent, over what particular area, or for what particular time, itshall exercise its powers. . . The real complaint of the plaintiff is notthat they caused the danger, but that, the danger being there, if theyhad lighted it he would have seen and avoided it."

In East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, the facts ofwhich are too well known to need repetition, Lord Romer cited Sheppard v.Glossop Corporation and stated the principle which he said it laid down:

"Where a statutory authority is entrusted with a mere power it cannotbe made liable for any damage sustained by a member of the public byreason of a failure to exercise that power."

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There are two points to be made about the East Suffolk case by way ofanticipation of what was said about it in Anns. First, Lord Wilberforce said[1978] A.C. 728, at p. 757 that:

"... only one of their Lordships [Lord Atkin] considered [the case]in relation to a duty of care at common law. . . I believe that theconception of a general duty of care, not limited to particular acceptedsituations, but extending generally over all relations of sufficientproximity, and even pervading the sphere of statutory functions ofpublic bodies, had not at that time become fully recognised."

I must say with great respect that I do not think that this is a fair descriptionof the reasoning of the majority. As a claim of breach of statutory duty hadexpressly been abandoned, it is hard to imagine what the majority could havethought was the alleged cause of action unless it was breach of a duty of careat common law. What the majority found impossible was to derive such a dutyfrom the existence of a statutory power: to turn a statutory "may" into acommon law "ought."

The second point about East Suffolk is that Lord Atkin, who dissented,does not appear to have founded a duty of care solely upon the existence of

the board's statutory powers. He appears to have held that by going upon theplaintiffs land to do work which the plaintiff himself could have done (see pp.91-92) the board accepted a duty to execute the work with due despatch. Onthis argument, the only relevance of the board's statutory powers was that itcould have done the work. It had no statutory defence which would not havebeen available to a private contractor who had gone upon the land in similarcircumstances. Whether Lord Atkin's reasoning is good or bad, it does notsupport the proposition that statutory powers can generate a duty of carewhich would not otherwise have existed.

The equally well known case of Dorset Yacht Co. Ltd. v. Home Office[1970] A.C. 1004 also cast no doubt upon the general principle stated by LordRomer in East Suffolk. The only reference to the case is by ViscountDilhorne, at p. 1050 G-H, in a dissenting speech. All members of the Houseplainly did not regard the case as one in which the alleged breach of duty wasmerely an omission to use a statutory power. The negligence was caused bysomething which the Borstal officers did, namely to use their statutory powersof custody to bring the trainees onto the island, where they constituted aforeseeable risk to boat owners, and then take no care to prevent them fromescaping in the night. The case was therefore prima facie within MerseyDocks and Harbour Board Trustees v. Gibbs (1866) L.R. 1 H.L. 93, and theirLordships were concerned only with whether the Crown had a defence on thegrounds that the alleged breach of duty involved the exercise of a statutorydiscretion or whether the fact that the damage was caused by the criminal actof the Borstal trainees negatived the causal link with the Crown's breach ofduty. Both these defences were rejected.

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7. Anns v. Merton Borough Council [1978] A.C. 728.

This brings me to Anns. As this case is the mainstay of Mrs Wise'sargument, I must examine it in some detail. The plaintiff were lessees of flatsin a new block which had been damaged by subsidence caused by inadequatefoundations. They complained that the Council had been negligent in theexercise 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 beliable for negligent inspection. The House rejected this argument. So far asit held that the Council owed a duty of care in respect of purely economicloss, the case has been overruled by Murphy v. Brentwood District Council[1991] 1 A.C. 398. The House left open the question of whether the Councilmight 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 somewhatsceptical. Nevertheless, it is now necessary to ask whether the reasoning cansupport the existence of a duty of care owed by a public authority in respectof foreseeable physical injury which is founded upon the existence of statutorypowers to safeguard people against that injury.

Lord Wilberforce, who gave the leading speech, first stated the wellknown two stage test for the existence of a duty of care. This involvesstarting with a prima facie assumption that a duty of care exists if it isreasonably foreseeable that carelessness may cause damage and then askingwhether there are any considerations which ought to "negative, or to reduceor limit the scope of the duty or the class of person to whom it is owed or thedamages to which a breach of it may arise." Subsequent decisions in thisHouse and the Privy Council have preferred to approach the question the otherway round, starting with situations in which a duty has been held to exist andthen asking whether there are considerations of analogy, policy, fairness andjustice for extending it to cover a new situation: see for example Lord Bridgeof Harwich in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 617-618. It can be said that, provided that the considerations of policy etc. areproperly analysed, it should not matter whether one starts from one end or theother.

On the other hand the assumption from which one starts makes a greatdeal of difference if the analysis is wrong. The trend of authorities has beento discourage the assumption that anyone who suffers loss is prima facieentitled to compensation from a person (preferably insured or a publicauthority) whose act or omission can be said to have caused it. The defaultposition is that he is not.

This does not of course mean that the actual analysis in Anns waswrong. It has to be considered on its own merits. Lord Wilberforce had todeal 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, itcould be under no liability for having done so negligently. The second reliedupon Lord Romer's principle in East Suffolk [1941] A.C. 74, 97: a public

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authority which has a mere statutory power cannot on that account owe a dutyat common law to exercise the power. Lord Wilberforce did not deny thefirst 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 itsstatutory 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 himfrom loss. The position is of course different if the negligent action of thepublic authority has left the plaintiff in a worse position than he would havebeen in if the authority had not acted at all. Lord Wilberforce did howeverdeny the Council's second proposition. His reasoning was as follows, at p.755:

"I think that this is too crude an argument. It overlooks the fact thatlocal authorities are public bodies operating under statute with a clearresponsibility for public health in their area. They must, and in factdo, make their discretionary decisions responsibly and for reasonswhich accord with the statutory purpose . . . .If they do not exercisetheir 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 sufficientstatement of the position. They are under a duty to give properconsideration to the question whether they should inspect or not. Theirimmunity from attack, in the event of failure to inspect, in otherwords, though great is not absolute. And because it is not absolute,the necessary premise for the proposition 'if no duty to inspect, thenno duty to take care in inspection' vanishes."

The duty of care at common law is therefore derived from thecouncil's duty in public law to "give proper consideration to the questionwhether they should inspect or not." It is clear, however, that this public lawduty cannot in itself give rise to a duty of care. A public body almost alwayshas a duty in public law to consider whether it should exercise its powers, butthat does not mean that it necessarily owes a duty of care which may requirethat the power should actually be exercised. As Mason J. said in SutherlandShire Council v. Heyman (1985) 157 C.L.R. 424, 465:

"... although a public authority may be under a public duty,enforceable by mandamus, to give proper consideration to the questionwhether it should exercise a power, this duty cannot be equated with,or regarded as a foundation for imposing, a duty of care on the publicauthority in relation to the exercise of the power. Mandamus willcompel proper consideration of the authority of its discretion, but thatis all."

A mandamus can require future consideration of the exercise of apower. But an action for negligence looks back to what the council ought tohave done. Upon what principles can one say of a public authority that notonly did it have a duty in public law to consider the exercise of the power butthat it would thereupon have been under a duty in private law to act, giving

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rise to a claim in compensation against public funds for its failure to do so?Or as Lord Wilberforce puts it in Anns [1978] A.C. 728, 754:

"The problem which this kind of action creates, is to define thecircumstances in which the law should impose, over and above, orperhaps alongside, these public law powers and duties, a duty inprivate law towards individuals such that they may sue for damages ina civil court."

The only tool which Anns provides for defining these circumstances is thedistinction between policy and operations. Lord Wilberforce said:

"Most, indeed probably all, statutes relating to public authorities orpublic bodies, contain in them a large area of policy. The courts callthis 'discretion' meaning that the decision is one for the authority orbody to make, and not for the courts. Many statutes also prescribe orat least presuppose the practical execution of policy decisions: aconvenient description of this is to say that in addition to the area ofpolicy or discretion, there is an operational area. Although thisdistinction between the policy area and the operational area isconvenient, and illuminating, it is probably a distinction of degree;many 'operational' powers or duties have in them some element of'discretion.' It can safely be said that the more 'operational' a poweror duty may be, the easier it is to superimpose upon it a common lawduty of care."

East Suffolk [1941] A.C. 74 and Sheppard v. Glossop Corporation[1921] 3 K.B. 132 were distinguished as involving questions of policy ordiscretion. The inspection of foundations, on the other hand, was "heavilyoperational" and the power to inspect could therefore give rise to a duty ofcare. Lord Romer's statement of principle in East Suffolk was limited to casesin which the exercise of the power involved a policy decision.

8. Policy and operations

Since Anns, there have been differing views, both in England and theCommonwealth, over whether it was right to breach the protection which theEast Suffolk principle gave to public authorities. In Sutherland Shire Councilv. Heyman, 157 C.L.R. 424, 483, Brennan J. thought that it was wrong: onesimply could not derive a common law "ought" from a statutory "may". ButI think that he was the only member of the court to adhere to such

uncompromising orthodoxy. What has become clear, however, is that thedistinction between policy and operations is an inadequate tool with which todiscover whether it is appropriate to impose a duty of care or not. In Rowlingv. Takaro Properties Ltd. [1988] A.C. 473, 501 Lord Keith of Kinkel said:

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"[Their Lordships] incline to the opinion, expressed in the literature,that this distinction does not provide a touchstone of liability, butrather is expressive of the need to exclude altogether those cases inwhich the decision under attack is of such a kind that a questionwhether it has been made negligently is unsuitable for judicialresolution, of which notable examples are discretionary decisions onthe allocation of scarce resources or the distribution of risks. . . .If this is right, classification of the relevant decision as a policy orplanning decision in this sense may exclude liability; but a conclusionthat 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. Thefirst is that, as Lord Wilberforce himself pointed out, the distinction is oftenelusive. This is particularly true of powers to provide public benefits whichinvolve the expenditure of money. Practically every decision about theprovision of such benefits, no matter how trivial it may seem, affects thebudget of the public authority in either timing or amount. East Suffolk, aboutwhich Lord Wilberforce said in Anns [1978] A.C. 728, 757, that the activitiesof the board, though "operational," were "well within the discretionary area,so that the plaintiff's task in contending for a duty of care was a difficult one"is a very good example. But another reason is that even if the distinction isclear cut, leaving no element of discretion in the sense that it would beirrational (in the public law meaning of that word) for the public authority notto exercise its power, it does not follow that the law should superimpose acommon law duty of care. This can be seen if one looks at cases in which apublic authority has been under a statutory or common law duty to provide aservice or other benefit for the public or a section of the public. In such casesthere is no discretion but the courts have nevertheless not been willing to holdthat a member of the public who has suffered loss because the service was notprovided to him should necessarily have a cause of action, either for breachof statutory duty or for negligence at common law.

There are many instances of this principle being applied to statutoryduties, but perhaps the most relevant example of the dissociation betweenpublic duty and a liability to pay compensation for breach of that duty was theancient common law duty to repair the highway. The common law imposedthis financial burden upon the inhabitants of the parish. But it saw no needto impose upon them the additional burden of paying compensation to usersof the highway who suffered injury because the highway surveyor had failedto repair. The duty could be enforced only by indictment. This rulecontinued to apply when the duty to maintain was transferred by statute tohighway authorities and was only abolished by section 1 of the Highways(Miscellaneous Provisions) Act 1961. Likewise in Hill v. Chief Constable ofWest Yorkshire [1989] A.C. 53 it was held that the public duty of the policeto catch criminals did not give rise to a duty of care to a member of the publicwho was injured because the police had negligently failed to catch one. Thedecision was mainly based upon the large element of discretion which the

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police necessarily have in conducting their operations, but the judgmentexcludes liability even in cases in which the alleged breach of duty wouldconstitute public law irrationality.

In terms of public finance, this is a perfectly reasonable attitude. It isone thing to provide a service at the public expense. It is another to requirethe public to pay compensation when a failure to provide the service hasresulted 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 providedin the first place. To require payment of compensation increases the burdenon public funds. Before imposing such an additional burden, the courtsshould be satisfied that this is what Parliament intended.

Whether a statutory duty gives rise to a private cause of action is aquestion of construction: see Reg. v. Deputy Governor of Parkhurst Prison,Ex parte Hague [1992] 1 A.C. 58. It requires an examination of the policyof the statute to decide whether it was intended to confer a right tocompensation for breach. Whether it can be relied upon to support theexistence of a common law duty of care is not exactly a question ofconstruction, because the cause of action does not arise out of the statuteitself. But the policy of the statute is nevertheless a crucial factor in thedecision. As Lord Browne-Wilkinson said in X (Minors) v. BedfordshireCounty Council [1995] 2 A.C. 633, 739c in relation to the duty of care owedby a public authority performing statutory functions:

"the question whether there is such a common law duty and if so itsambit, must be profoundly influenced by the statutory frameworkwithin which the acts complained of were done."

The same is true of omission to perform a statutory duty. If such aduty does not give rise to a private right to sue for breach, it would beunusual if it nevertheless gave rise to a duty of care at common law whichmade the public authority liable to pay compensation for foreseeable losscaused by the duty not being performed. It will often be foreseeable that losswill result if, for example, a benefit or service is not provided. If the policyof the act is not to create a statutory liability to pay compensation, the samepolicy 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 thelegislature has chosen to confer a discretion rather than create a duty. Ofcourse there may be cases in which Parliament has chosen to confer a powerbecause the subject matter did not permit a duty to be stated with sufficientprecision. It may nevertheless have contemplated that in circumstances inwhich it would be irrational not to exercise the power, a person who sufferedloss because it had not been exercised, or not properly exercised, would beentitled to compensation. I therefore do not say that a statutory "may" cannever give rise to a common law duty of care. I prefer to leave open thequestion of whether Anns was wrong to create any exception to Lord

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Romer's statement of principle in East Suffolk and I shall go on to considerthe circumstances (such as "general reliance") in which it has been suggestedthat such a duty might arise. But the fact that Parliament has conferred adiscretion must be some indication that the policy of the act conferring thepower was not to create a right to compensation. The need to have regard tothe policy of the statute therefore means that exceptions will be rare.

In summary, therefore, I think that the minimum pre-conditions forbasing a duty of care upon the existence of a statutory power, if it can bedone at all, are, first, that it would in the circumstances have been irrationalnot to have exercised the power, so that there was in effect a public law dutyto act, and secondly, that there are exceptional grounds for holding that thepolicy of the statute requires compensation to be paid to persons who sufferloss because the power was not exercised.

9. Particular and general reliance.

In Sutherland Shire Council v. Heyman, 157 C.L.R. 424, 483,Brennan J., as I have mentioned, thought that a statutory power could nevergenerate a common law duty of care unless the public authority had createdan expectation that the power would be used and the plaintiff had suffereddamage from reliance on that expectation. A common example is thelighthouse authority which, by the exercise of its power to build and maintaina lighthouse, creates in mariners an expectation that the light will warn themof danger. In such circumstances, the authority (unlike the GlossopCorporation in Sheppard v. Glossop Corporation [1921] 3 K.B. 132) owes aduty of care which requires it not to extinguish the light without givingreasonable notice. This form of liability, based upon representation andreliance, does not depend upon the public nature of the authority's powers andcauses no problems.

In the same case, however, Mason J. suggested a different basis uponwhich public powers might give rise to a duty of care. He said, at p. 464:

"there will be cases in which the plaintiff's reasonable reliance willarise out of a general dependence on an authority's performance of itsfunction with due care, without the need for contributing conduct onthe part of a defendant or action to his detriment on the part of aplaintiff. Reliance or dependence in this sense is in general theproduct of the grant (and exercise) of powers designed to prevent orminimise a risk of personal injury or disability, recognised by thelegislature as being of such magnitude or complexity that individualscannot, or may not, take adequate steps for their own protection. Thissituation generates on one side (the individual) a general expectationthat the power will be exercised and on the other side (the authority)a realisation that there is a general reliance or dependence on itsexercise of the power . . . .The control of air traffic, the safety

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inspection of aircraft and the fighting of a fire in a building by a fireauthority . . . may well be examples of this type of function."

This ground for imposing a duty of care has been called "generalreliance." It has little in common with the ordinary doctrine of reliance; theplaintiff does not need to have relied upon the expectation that the powerwould be used or even known that it existed. It appears rather to refer togeneral expectations in the community, which the individual plaintiff may ormay 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 thatstatutory powers of inspection or accident prevention will ordinarily preventcertain kinds of risk from materialising. Thus the doctrine of general reliancerequires an inquiry into the role of a given statutory power in the behaviourof members of the general public, of which an outstanding example is thejudgment of Richardson J. in Invercargill City Council v. Hamlin [1994] 3N.Z.L.R. 513, 526.

It appears to be essential to the doctrine of general reliance that thebenefit or service provided under statutory powers should be of a uniform androutine nature, so that one can describe exactly what the public authority wassupposed to do. Powers of inspection for defects clearly fall into thiscategory. Another way of looking at the matter is to say that if a particularservice is provided as a matter of routine, it would be irrational for a publicauthority to provide it in one case and arbitrarily withhold it in another. Thiswas obviously the main ground upon which this House in Anns considered thatthe power of the local authority to inspect foundations should give rise to aduty of care.

But the fact that it would be irrational not to exercise the power is, asI have said, only one of the conditions which has to be satisfied. It is alsonecessary to discern a policy which confers a right to financial compensationif the power has not been exercised. Mason J. thought in Sutherland ShireCouncil v. Heyman, 157 C.L.R. 424, 464 that such a policy might be inferredif the power was intended to protect members of the public from risks againstwhich they could not guard themselves. In Invercargill, as I have said, theNew Zealand Court of Appeal [1994] 3 N.Z.L.R. 513 and the Privy Council[1996] 2 W.L.R. 367 found it in general patterns of socio-economicbehaviour. I do not propose to explore further the doctrine of general reliancebecause, for reasons which I shall explain, I think that there are no groundsupon which the present case can be brought within it. I will only note inpassing that its application may require some very careful analysis of the rolewhich the expected exercise of the statutory power plays in communitybehaviour. For example, in one sense it is true that the fire brigade is thereto protect people in situations in which they could not be expected to be ableto protect themselves. On the other hand, they can and do protect themselvesby insurance against the risk of fire. It not obvious that there should be aright to compensation from a negligent fire authority which will ordinarily

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ensure by right of subrogation to an insurance company. The only reasonwould be to provide a general deterrent against inefficiency. But there mustbe better ways of doing this than by compensating insurance companies outof public funds. And while premiums no doubt take into account the existenceof 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 nocompensation was paid in the rare cases in which the fire authority negligentlyfailed to perform its public duty.

10. Anns v. Merton London Borough Council [1978] A.C. 728 in Canada.

Before coming to the facts of the present case, I should say somethingabout the Canadian cases which have followed Anns. They are relevantbecause a number of them involve reliance upon the statutory powers ofhighway authorities to create a common law duty of care. What is more, theCanadian Supreme Court appears to have achieved this result without the aidof any principle of discrimination other than the distinction between policy andoperations.

In Barratt v. District of North Vancouver (1980) 114 D.L.R. (3rd) 577the plaintiff was a cyclist who was injured when he rode into a pothole. Thelocal authority had a statutory power, but no duty, to maintain the highway.It had a system of inspecting roads once a fortnight. The pothole hadapparently come into existence since the last inspection a week earlier. Atfirst instance, the judge held that the local authority were negligent in nothaving more frequent inspections. The Supreme Court, applying Anns, heldthat frequency of inspections was a matter of policy and could not form thebasis of a charge of negligence. On the other hand, in Just v. BritishColumbia (1989) 64 D.L.R. (4th) 689, frequency of inspections was held tobe operational. The plaintiffs car was struck by a boulder which had beenloosened by ice and snow and rolled down a hill onto the road. The BritishColumbia Department of Highways had a statutory power to maintain thehighway and had a system of inspection of rock slopes to detect looseboulders. The Supreme Court held that the Department could be negligent ifit did not inspect often enough. In Brown v. British Columbia (Minister ofTransport and Highways) (1994) 112 D.L.R. (4th) 1, the plaintiff was injuredwhen his truck skidded on black ice in cold November weather. He said thatthe Department of Highways should have put salt and sand on the road toprevent ice from forming. The court held that the Department's decision tocontinue its infrequent summer schedule of road maintenance into Novemberwas a matter of policy. The Department was therefore not negligent even ifan earlier adoption of the winter schedule would have prevented the accident.

I have to say that these cases seem to me to illustrate the inadequacyof the concepts of policy and operations to provide a convincing criterion fordeciding when a duty of care should exist. The distinctions which they draw

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are hardly visible to the naked eye. With all respect to the majority, I preferthe 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 whichrequired it to take steps to improve the junction. Since the only basis for sucha duty is the authority's statutory powers, both specifically under section 79of the Act of 1980 and generally to carry out works of improvement with theconsent of British Rail, I will start by asking whether in the light of what thecouncil knew or ought to have known about the junction, it would have hada duty in public law to undertake the work. This requires that it would havebeen irrational not to exercise its discretion to do so. The trial judge did notaddress himself to this question. He thought it was sufficient that, as he putit, "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 workdoes not show that it would have been unreasonable or irrational for thecouncil not to have done it. That is simply a non sequitur. The Court ofAppeal seems to have reasoned that the "decision" to do the work disposed ofany question of policy or discretion and left only the operational question ofwhen 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 spentis 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 hadleft 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 inpublic law to give due consideration to the exercise of its powers. Perhapsit would, but that does not advance the case far enough. It would still benecessary to say that if the council had considered the matter, it would havebeen bound to decide to do the work. One comes back, therefore, to thequestion of whether it would have been irrational to decide not to do it.

Furthermore, to say that a decision had been taken oversimplifies thesituation. Mr. Longhurst had not committed himself to any particular time

within which the work would be done. There was, as Mr. Deller said, a "niltime 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, theMarch 1988 accident with the police car had not yet happened. Nor was itnotified to Mr. Longhurst or Mr. Deller when it did. The judge found thatthey would have displayed a greater sense of urgency if they had known aboutit. But the judge made no finding that the council should have had a systemby which Mr. Longhurst was notified of every accident on the roads of SouthNorfolk. Such a system would have been quite impractical. There were3,500 personal injury accidents in Norfolk every year and their particularswere simply entered on a computer from which the Accident Studies Sectionin Norwich identified "cluster sites" for special attention. No firm decision

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had been taken on expenditure either. Mr. Deller thought that the work wouldcost less than £1,000, in which case it would have come withinMr. Longhurst's discretionary budget for small works. But he said he couldnot be sure of the cost until he had consulted a design engineer: "it could belots and lots more." This caution was justifies by events. After Mr. Stovin'saccident, Mr. Brian Meadows, who worked for the Accident Studies Section,inspected the junction and said that the bank could not be regraded within thebudget for a low cost remedial scheme.

The judge, as I say, made no finding as to whether it would have beenirrational for the council not to have done the work. The unchallengedevidence of Mr. Reid, who was head of the Accident Studies Office, wouldhave made it very difficult to do so. In evidence in chief, he was asked aboutthe March 1988 accident:

"Q. So far as you are concerned, what difference, if any, would thesignificance of this accident have made in relation to priority given to carryingout work at this site, against the background of what had happened withBritish Rail?

"A. In practical terms, it would have made no difference at all to thepriority within the accident remedial budget, because our attention andresources would have been directed to those many sites in the county whichalready 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 shouldbe done about the junction was at all times firmly within the area of thecouncil's discretion. As they were therefore not under a public law duty todo the work, the first condition for the imposition of a duty of care was notsatisfied.

But even if it were, I do not think that the second condition would besatisfied. Assuming that the highway authority ought, as a matter of publiclaw, to have done the work, I do not think that there are any grounds uponwhich it can be said that the public law duty should give rise to an obligationto compensate persons who have suffered loss because it was not performed.There is no question here of reliance on the council having improved thejunction. Everyone could see that it was still the same. Mr. Stovin was notarbitrarily denied a benefit which was routinely provided to others. In respectof 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 benefitor service. Every hazardous junction, intersection or stretch of road isdifferent and requires a separate decision as to whether anything should bedone to improve it. It is not without significance that the Canadian cases in

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which a duty of care has been held to exist have all involved routineinspection and maintenance rather than improvements.

I have mentioned earlier that maintenance of the highway was, until1961, a striking example of a public duty which involved no obligation tocompensate a person who had suffered damage because of its breach. Thepower in section 79, upon which the plaintiff principally relies to generate aduty of care, was first enacted as section 4 of the Road Improvement Act1925. It seems to me impossible to discern a legislative intent that thereshould be a duty of care in respect of the use of that power, giving rise to aliability to compensate persons injured by a failure to use it, when there wasat the time no such liability even for breach of the statutory duty to maintainthe 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, wouldinevitably expose the authority's budgetary decisions to judicial inquiry. Thiswould distort the priorities of local authorities, which would be bound to tryto play safe by increasing their spending on road improvements rather thanrisk enormous liabilities for personal injury accidents. They will spend less

on education or social services. I think that it is important, before extendingthe duty of care owed by public authorities, to consider the cost to thecommunity of the defensive measures which they are likely to take in orderto avoid liability. It would not be surprising if one of the consequences ofAnns and the spate of cases which followed was that local council inspectorstended to insist upon stronger foundations than were necessary. In a case likethis, I do not think that the duty of care can be used as a deterrent againstlow standards in improving the road lay-out. Given the fact that the Britishroad network largely antedates the highway authorities themselves, the courtis not in a position to say what an appropriate standard of improvement wouldbe. This must be a matter for the discretion of the authority. On the otherhand, denial of liability does not leave the road user unprotected. Drivers ofvehicles must take the highway network as they find it. Everyone knows thatthere are hazardous bends, intersections and junctions. It is primarily the dutyof 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 thevictims. There is no reason of policy or justice which requires the highwayauthority to be an additional defendant. I would therefore allow the appeal.

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