Stovin v Wise

The House considered whether a highway authority can owe a concurrent common law duty in tort for omissions where it has a statutory power (rather than a duty) to remove a danger to road users. The court emphasised the distinction between liability for positive acts and for omissions, and applied the concepts of foreseeability, proximity and fairness (drawing on the Anns/Caparo formulations). The majority held that a statutory power will not ordinarily give rise to a private law duty to act unless there are special circumstances sufficient to create proximity (for example, clear reliance or an effective public law duty amounting in practice to an obligation to act). In the particular facts — a decision to seek permission to remove a sightline obstruction which was not followed up and which lay within the authority's discretionary priorities — the House held that there was no such special circumstance making it fair and reasonable to impose tortious liability.

The appellant, Norfolk County Council, as highway authority, appealed against the Court of Appeal's decision upholding a High Court finding that the council was partly liable for injuries sustained by the respondent, Mr Stovin, when his motorcycle collided with a car emerging from a junction obstructed by a bank and fence. The claimant relied on a common law duty of care based on the council's statutory powers under the Highways Act 1980 (notably section 79) and on public law obligations to take steps to remove known dangers adjacent to the highway.

Nature of the claim: a tortious negligence claim seeking damages for physical injury arising from an alleged failure by the highway authority to act to remove a known obstruction.

Procedural history: At first instance Judge Crawford found the driver 70% liable and the council 30% liable. The Court of Appeal ([1994] 1 WLR 1124) dismissed the council's appeal. The case came to the House of Lords by further appeal.

Issues framed:

• Whether a public authority with a statutory power (as opposed to a statutory duty) to remove a danger can be under a concurrent common law duty in tort to exercise that power so as to be liable in damages for failing to do so;
• How the common law duty principles (foreseeability, proximity, fairness/reasonableness) apply to omissions by public authorities;
• Whether special circumstances (such as actual or general reliance, control of the source of danger, or an effective public law obligation) existed to justify imposing tortious liability on the council in this case.

Court's reasoning: The majority (Lords Hoffmann, Goff and Jauncey) reiterated that omissions attract stricter limits than positive acts, since imposing a duty to act requires special justification. The statutory framework is crucial: Parliament's choice to confer a power rather than a duty weighs against implying a private law cause of action unless special circumstances create sufficient proximity. The House accepted that, in principle, a highway authority aware of a danger may owe a common law duty to act where the circumstances are such that it would be irrational not to exercise the power and where policy considerations support a private remedy (for example, where road users are vulnerable, the loss is physical, control of the danger lies with the authority and redress by public law is inadequate). In the present facts the court found no such special circumstances or reliance and concluded the council's allocation of priorities and failure to follow up British Rail permission fell within the exercise of public law discretion. Accordingly, no concurrent tort duty arose and the council was not liable.

The House therefore allowed the council's appeal and dismissed the respondent's claims, awarding costs to the council.

Appeal allowed. The majority held that a public authority’s statutory power to remove a danger will not, without more, create a concurrent common law duty in tort to act; special circumstances (sufficient proximity, such as actual or general reliance or an effective public law obligation amounting to an obligation to act) are required before imposing liability for omission. On the facts there were no such circumstances and no duty arose.

High Court: Judge Crawford Q.C. found driver 70% liable and Norfolk County Council 30% liable (trial judgment). Court of Appeal: [1994] 1 W.L.R. 1124 — dismissed the council's appeal (upheld council's liability). House of Lords: [1996] UKHL 15 — appeal allowed and respondent's claims dismissed.