Stovin v Wise (Norfolk County Council, third party)

A public authority’s statutory power does not ordinarily create a common law duty to exercise it. A duty of care based on non-exercise can arise, if at all, only where two minimum conditions are met:

1. failure to exercise the power would have been irrational, so that public law required action; and
2. exceptional grounds show that the statutory policy requires compensation for loss caused by non-exercise.

A decision by officials to act does not itself satisfy the first condition. Nor does general reliance arise where the authority provides no uniform and identifiable service. The law treats pure omissions cautiously because liability would compel expenditure for harm which the defendant did not create.

Mr Stovin suffered serious injuries when Mrs Wise drove from Cemetery Road into Station Road at a junction where an earth bank and fence obstructed visibility. Mrs Wise joined Norfolk County Council, the highway authority, as a third party. The council knew that the junction presented a hazard and had sought British Rail’s consent to remove the obstruction, but it did not pursue the proposal.

Judge Crawford QC attributed 70% of the responsibility to Mrs Wise and 30% to the council. The Court of Appeal, comprising Nourse, Kennedy and Roch LJJ, dismissed the council’s appeal: [1994] 1 W.L.R. 1124. A claim under section 41 of the Highways Act 1980 had failed because the obstruction stood on adjoining land, and that ruling was not challenged.

The sole issue before the House was whether the council owed a common law duty of care to exercise, or pursue action within, its statutory powers to remove a danger which it had not created.

By a majority, allowing the appeal. Lord Hoffmann delivered the leading speech. Lord Goff and Lord Jauncey agreed with his reasons. Lord Nicholls dissented, with Lord Slynn agreeing.

1. Pure omission. Per Lord Hoffmann, the council had done nothing which caused the dangerous junction. Its preliminary negotiations with British Rail did not convert its failure to improve visibility into a positive act. English law ordinarily imposes no duty to protect another from harm caused by a third party or natural conditions. An undertaking, induced reliance, occupation or another special relationship may justify an exception.

2. Statutory powers. Per Lord Hoffmann, the existence of a public power cannot by itself turn a statutory “may” into a common law obligation carrying compensation. The policy and statutory framework must profoundly influence the private-law inquiry. The minimum preconditions for a duty based on a statutory power were that non-exercise would have been irrational, creating an effective public-law duty to act, and that exceptional grounds showed a statutory policy requiring compensation. Lord Hoffmann disapproved the use in Anns v Merton London Borough Council [1978] AC 728 of a prima facie duty and a policy-or-operations distinction as sufficient tools for this question.

3. No public-law duty. The first condition failed. The officers’ willingness to undertake the work did not establish that refusal or delay would have been irrational. The timing, priority and funding of road improvements remained discretionary. The evidence showed that many sites had materially worse accident records.

4. No compensatory policy. The second condition also failed. There had been no particular reliance, and road improvement was not a uniform, routinely supplied service capable of supporting general reliance. Section 79 of the Highways Act 1980 conferred a discretionary power. Its legislative history disclosed no intention to compensate persons injured by non-exercise. Liability would also distort public expenditure by encouraging defensive spending on road improvements. Drivers remained primarily responsible for adapting to hazardous roads, with compulsory insurance providing compensation when they failed to do so.

5. Dissent. Lord Nicholls considered that special circumstances made a duty fair and reasonable. The council knew of a serious physical danger, road users were vulnerable, the remedial work was modest, and the council’s failure to implement its decision breached its public-law obligations. In his view a concurrent duty would require no conduct beyond that already required by public law and would supply an otherwise unavailable remedy.

The Court of Appeal’s order and Judge Crawford’s order against the council were set aside. The claims against the council were dismissed, with costs.

• House of Lords: By a majority of three to two, allowed Norfolk County Council’s appeal, set aside the orders below and dismissed the claims against the council.
• Court of Appeal: Nourse, Kennedy and Roch LJJ dismissed the council’s appeal: [1994] 1 W.L.R. 1124.
• High Court: Judge Crawford QC held Mrs Wise 70% responsible and Norfolk County Council 30% responsible. He found that the council owed a common law duty and had breached it by failing to pursue the proposed safety work.