East Suffolk Rivers Catchment Board v Kent

A statutory authority given a discretionary power, but no duty, to carry out protective works does not become liable merely because it undertakes the work inefficiently or too slowly. Commencement does not convert the power into a duty to complete the work or secure the benefit which careful performance might have produced.

The authority must nevertheless avoid causing fresh or additional injury through negligent execution. Liability depends on duty, breach and damage caused by the exercise of the power. Loss from a pre-existing natural danger is not caused by the authority merely because competent intervention would have ended it sooner. The claimant’s position must be compared with the position had the authority not intervened.

An exceptionally high tide breached a river wall protecting marshland owned by Porter and occupied by Kent. The land remained flooded by tidal salt water. The East Suffolk Rivers Catchment Board had power under the Land Drainage Act 1930 to repair the wall, but no enforceable statutory duty to do so.

The Board attempted the repair, but used methods which the trial judge found inefficient. The breach could have been closed in 14 days using reasonable skill, but remained open for 164 days. The respondents claimed the loss attributable to that delay.

Hilbery J rejected the alleged statutory duty but found the repair operations deficient. In the Court of Appeal, Slesser and MacKinnon LJJ held the Board liable, while du Parcq LJ dissented. The central issue before the House was whether negligent exercise of a discretionary statutory power made the Board liable for damage which its intervention failed to prevent, but did not itself create or increase beyond the consequences of doing nothing.

Held, by a majority of four to one, allowing the appeal:

1. Per the Lord Chancellor, Lord Romer and Lord Porter, the Land Drainage Act 1930 conferred a power to repair the wall but imposed no duty to undertake the work. The Board could decide whether, when, for how long and by what method to exercise that power. Beginning the work did not place the Board in the same position as a person subject to a statutory or contractual duty to complete it efficiently and with reasonable despatch.

2. Per the Lord Chancellor, Lord Romer and Lord Porter, an authority exercising a statutory power must take reasonable care not to cause fresh or additional damage through its positive operations. It may therefore be liable where its intervention creates a new danger, enlarges the affected area or makes the claimant worse off than if it had done nothing. It is not liable merely because more skilful or prompt work would have reduced damage arising from an independent source.

3. The flooding was caused by the natural breach and the continuing action of the tide. The Board’s inefficient attempts did not prolong the flooding beyond the period for which it would have continued had the Board never intervened. The respondents therefore failed to establish damage caused by the Board’s exercise of its power. The majority followed the distinction drawn in Sheppard v Glossop Corporation (1921) 3 K.B. 132 and explained Lord Blackburn’s proposition in Geddis v Proprietors of Bann Reservoir (1878) 3 A.C. 430 as concerning damage occasioned by exercising a power negligently.

4. Lord Thankerton agreed that the appeal should be allowed. He considered that the Board owed a duty of reasonable care in the operations actually undertaken and that the trial judge could find a breach. He nevertheless concluded that the respondents had not established the necessary causal link, because the water entering through the original breach remained the effective cause of the damage.

5. Lord Porter expressly left undecided whether liability might arise through estoppel where an authority’s conduct caused a landowner to alter position in reliance upon the undertaking. No such case was pleaded or proved.

6. Lord Atkin dissented. In his view, entry upon the respondents’ land to repair their wall created a sufficiently close relationship to impose a common law duty of reasonable care, including reasonable despatch. If the respondents proved additional damage from exposure beyond the reasonable repair period, that damage was directly caused by the breach. He would have permitted that issue to be determined when damages were assessed.

1. House of Lords: In East Suffolk Rivers Catchment Board v Kent [1941] AC 74, the Board’s appeal was allowed by a majority of four to one. The Court of Appeal’s conclusion imposing liability was reversed.
2. Court of Appeal: Slesser and MacKinnon LJJ held that the Board was liable for failing to carry out the work with reasonable care and expedition. Du Parcq LJ dissented and would have held that inadequate exercise of the discretionary power did not make the Board liable for damage which it had not caused.
3. High Court: Hilbery J rejected the allegation that the Land Drainage Act 1930 imposed a positive duty to repair. He found that the methods and staffing employed were inefficient and that reasonable skill could have closed the breach within 14 days rather than 164 days.