Furnell v Flaherty (t/a Godstone Farm)

A public authority’s failure to confer a benefit by omitting to perform a statutory duty or exercise a statutory power does not, without more, create a common-law duty of care in negligence, even where the omission was irrational. Liability may nevertheless arise under ordinary private-law principles where the authority worsens the claimant’s position or assumes responsibility in a genuinely private relationship. The relevant distinction is between action for an individual and action for the public good. Knowledge of a public-health risk, statutory powers, inter-authority cooperation and general reliance do not themselves establish assumption of responsibility. A claim may be struck out where, on the pleaded facts, no legally sufficient relationship capable of giving rise to a duty is disclosed.

The claimants, young children, were infected with E. coli O157 after visiting Godstone Farm. The defendant farm proprietor admitted liability to the claimants and brought additional claims against the Health Protection Agency and Tandridge District Council seeking contribution or indemnity under section 1(1) of the Civil Liability (Contribution) Act 1978.

The third parties were alleged to have known of earlier cases associated with the farm, failed to recognise and manage an outbreak before the claimants’ visit, and thereby owed the claimants a common-law duty of care. Senior Master Whitaker struck out the additional claims under CPR 3.4(2)(a). Permission to appeal was granted. The central issue was whether the pleaded statutory functions, knowledge, communications and alleged reliance arguably established a private-law duty of care.

1. Appeal dismissed. The Senior Master was right to strike out the additional claims because the pleaded facts could not establish a duty of care owed by either third party to the claimants.
2. Following Gorringe v Calderdale MBC [2004] 1 WLR 1057, a public body’s mere failure to confer a benefit by omitting to perform a public statutory duty or exercise a statutory power does not generate negligence liability. The position is unaffected by the irrationality of the omission. The earlier possibility identified in Stovin v Wise [1996] AC 923 was closed by Gorringe.
3. Ordinary private-law principles remain capable of imposing liability. They include cases where the authority’s positive acts make the claimant worse off than if it had done nothing, and cases involving an assumption or attachment of responsibility. Statutory powers and duties do not necessarily negate a duty arising from acts, relationships or responsibilities actually undertaken.
4. The central distinction is whether the authority acted primarily for an individual or for the common good. The pleaded circumstances showed that the Agency and Council acted for the public good, addressed an indeterminate class potentially including persons infected after leaving the farm, had no contact with the visitors, and had not undertaken responsibility to the claimants. Their statutory powers, knowledge of the outbreak and communications with the farm were insufficient.
5. The reasoning in Larner v Solihull MBC [2001] RTR 32 and the corresponding approach in Health and Safety Executive v Thames Trains [2003] EWCA Civ 720 could no longer be relied on insofar as they treated irrational failure to exercise statutory powers as potentially sufficient without more. Selwood v Durham CC [2012] PIQR P20 was consistent with the private-law exception because it concerned a potentially assumed responsibility within a close working relationship.
6. Although further disclosure or evidence might sometimes prevent strike-out, no possible further evidence could cure the legal defect in this pleaded case. Novelty was no substitute for merit.

1. High Court (Queen’s Bench Division): The appeal from the Senior Master’s order was dismissed. The strike-out of the additional claims under CPR 3.4(2)(a) was upheld.
2. Senior Master Whitaker: In a judgment dated 9 May 2012, the additional claims against the Health Protection Agency and Tandridge District Council were struck out by order dated 2 July 2012. Permission to appeal was refused.