Stovin v Wise [1996] UKHL 15

Mr Stovin was severely injured when Mrs Wise’s car emerged from a dangerous junction with poor visibility. Norfolk County Council knew of the hazard and had statutory powers to remove it but failed to act. The House of Lords held the council owed no common law duty to exercise that power, limiting public authorities’ tort liability for omissions.

Facts

Mr Stovin was riding his motorcycle along Station Road in Wymondham in December 1988 when a car driven by Mrs Wise emerged from Cemetery Road, turning right across his path at an acute angle. Visibility to the right from Cemetery Road was severely obstructed by a bank of earth and a fence on land owned by British Rail, so that a driver could not see oncoming traffic until the vehicle had nosed into Station Road.

There had been accidents at the junction in 1976, 1982 and March 1988. However, three accidents in twelve years did not qualify the junction as a computer-identified “cluster site” or accident black spot under Norfolk County Council’s policies.

The Wymondham Road Safety Committee raised concerns in 1987. The council’s divisional surveyor, Mr Longhurst, and his traffic expert, Mr Deller, inspected and concluded the best solution was to remove the bank. In January 1988 the council wrote to British Rail seeking consent to carry out the work at the council’s expense. A site meeting followed and British Rail agreed to seek internal approval, but did not respond further. The council did not chase the matter. Mr Deller was transferred and the proposal was allowed to lapse.

On 11 December 1988, before any remedial work had occurred, Mrs Wise collided with Mr Stovin. Judge Crawford Q.C. held Mrs Wise was 70 per cent liable and Norfolk County Council 30 per cent liable in negligence for failing to take reasonable steps to remove the known hazard. The Court of Appeal dismissed the council’s appeal, upholding the finding of a common law duty of care.

Issues

The central issue before the House of Lords was whether Norfolk County Council, as highway authority, owed road users a common law duty of care in respect of its failure to exercise, or to pursue, its statutory powers to alleviate a known hazard arising from adjoining land, in particular the power under section 79 of the Highways Act 1980 to require removal of obstructions to visibility.

Key sub-issues included:

• Whether the case concerned liability for a pure omission and how omissions differ from positive acts in negligence.
• Whether statutory powers (as distinct from statutory duties) can generate a common law duty of care to exercise those powers.
• The role of public law duties and Wednesbury-type unreasonableness in informing any concurrent private law duty.
• The significance of policy/operational distinctions and the proper limits of tort liability for public authorities.

Judgment

House of Lords’ formal order

The House ordered that the orders of Judge Crawford Q.C. and the Court of Appeal be set aside and that the respondent’s claims against the council be dismissed. It further ordered that the respondent pay the council’s costs in the High Court, Court of Appeal and House of Lords.

Speeches

Lord Goff of Chieveley and Lord Jauncey of Tullichettle

Both agreed with Lord Hoffmann and would allow the appeal.

Lord Slynn of Hadley and Lord Nicholls of Birkenhead (dissenting)

Lord Slynn adopted the reasoning of Lord Nicholls and would have dismissed the appeal. Lord Nicholls delivered an extensive dissent analysing when a public authority’s failure to act in breach of public law obligations might create a concurrent common law duty.

Lord Nicholls framed the overarching question:

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 statutory power. When may a public authority be liable in damages for an unreasonable failure to act, in breach of its public law obligations?

He emphasised that the council had not created the source of danger, so liability could only arise if there was a duty requiring it to act. He recognised the traditional distinction between liability for acts and liability for omissions, accepting that positive duties arise more readily in relationships exhibiting proximity, such as occupier–neighbour relations as in Goldman v. Hargrave.

Lord Nicholls explained that public bodies operate within a statutory framework and that any concurrent common law duty must not be inconsistent with Parliament’s intention. Nonetheless, he considered that there can be situations where a public authority’s public law obligation to act as a reasonable authority is mirrored by a common law duty, without adding substantive obligations but attaching civil liability for non-compliance.

In his analysis, the present case involved a power (section 79) to remove dangers from public places, an area which he regarded as close to the “edge of the spectrum” where little extra may be needed to found a duty of care. He highlighted several cumulative factors favouring a duty: the risk of serious physical injury, the vulnerability of road users, the council’s actual knowledge of the danger, the straightforward and inexpensive remedial work, the analogy with occupiers’ duties, and the gap in effective remedies under public law.

He concluded that special circumstances existed to justify a concurrent common law duty on the highway authority, at least where the authority knows of the danger and fails to act reasonably to remove it. He would therefore have upheld the Court of Appeal and dismissed the council’s appeal.

Lord Hoffmann (leading majority speech)

Acts, omissions and private individuals

Lord Hoffmann emphasised that the complaint against the council was not that it had done anything to make the highway dangerous, but that it had failed to improve it. He stressed the orthodox distinction between acts and omissions, explaining why omissions require different treatment in negligence.

He endorsed judicial observations that the common law does not impose Good Samaritan duties. Referring to Hargrave v. Goldman, he accepted that positive duties may arise from ownership or occupation of land, or from assumption of responsibility, but underlined their exceptional nature and the limited classes of persons to whom such duties are owed.

Highway authority as public body

The plaintiff’s argument depended on the council’s status as a public authority with statutory powers and resources. Lord Hoffmann accepted that some arguments against imposing duties on private individuals do not apply with equal force to public bodies, but maintained that other powerful reasons specific to public authorities remain.

He reiterated that since Mersey Docks Trustees v. Gibbs public bodies are in principle liable in tort like private persons, but their statutory powers and duties can both restrict and, if argued, be said to enlarge their liability.

Statutory powers, duties and Anns

Lord Hoffmann reviewed the pre‑Anns authorities, particularly Sheppard v. Glossop Corporation and East Suffolk Rivers Catchment Board v. Kent, in which a mere statutory power did not give rise to liability for failure to act. He questioned Lord Wilberforce’s characterisation of East Suffolk and reaffirmed Lord Romer’s principle that a statutory “may” does not, without more, generate a common law “ought”.

Analyzing Anns v. Merton London Borough Council, he noted that its two-stage test starts from a prima facie assumption of duty where foreseeability is present, an approach later modified by cases such as Caparo. In his view, the crucial question in cases involving statutory powers is when it is proper to superimpose a private law duty upon public law functions.

Lord Hoffmann regarded the policy/operations distinction as an inadequate tool. He cited later authority, including Rowling v. Takaro Properties Ltd., to the effect that classification of a decision as operational does not necessarily entail a duty of care. He stressed that even where a public authority is under an enforceable public duty to consider exercising a power, this does not automatically found a private law duty to act.

He contrasted public law remedies such as mandamus, which compel proper consideration of discretion, with negligence actions, which assume the authority both ought to have considered and ought then to have acted.

Public law duty and common law duty

Lord Hoffmann stated that whether a statutory duty gives rise to a private cause of action is a question of construction, and that the policy of the statute is central to deciding whether it can also support a common law duty of care. He cited the approach in X (Minors) v. Bedfordshire County Council, that any duty of care must be profoundly influenced by the statutory framework.

He observed that many statutory or common law public duties – for example the former duty to repair highways, or the police duty to investigate crime as in Hill v. Chief Constable of West Yorkshire – do not give rise to liability in damages for non-performance, even where loss is foreseeable. He considered this financially and institutionally justifiable: providing a service at public expense is distinct from bearing compensatory liability for failures to provide that service.

He accepted that there might be very rare cases where a statutory power could support a common law duty, but set stringent minimum preconditions:

the minimum pre-conditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.

Reliance and general reliance

Lord Hoffmann distinguished liability based on specific reliance – for example, a lighthouse authority inducing mariners to rely on a light – from the broader concept of “general reliance” advanced by Mason J. in Sutherland Shire Council v. Heyman, where public expectations about routine statutory functions shape socio-economic behaviour.

He accepted that general reliance may support a duty where a uniform, routine public service is provided, such as inspections, and where it would be irrational to provide it in some cases but not others. However, he emphasised that such a doctrine does not apply where the alleged duty concerns discretionary improvements rather than standardised services.

Application to Norfolk County Council

Applying these principles, Lord Hoffmann first asked whether, on the facts, the council was under any public law duty to take action at the junction. This would require a finding that it would have been irrational not to exercise its powers (including section 79).

He rejected the view that the council’s internal “decision” to act, reflected in correspondence with British Rail, eliminated any element of discretion or converted policy questions into purely operational matters. Timing, priority and budgetary allocation remained discretionary. Even if the officer-level intention to act existed, there was no binding decision as to when, or with what resources, the works would be undertaken.

He noted unchallenged evidence from Mr Reid, head of the Accident Studies Office, that even with knowledge of the March 1988 accident the site would not have ranked as a priority compared with many other locations with far higher accident records. There was no suggestion that this prioritisation was unreasonable, still less irrational.

Consequently, he concluded the decision whether to improve the junction lay squarely within the council’s discretion, and that it was not under a public law duty to act. The first precondition for a common law duty was therefore not met.

Turning to the second precondition, he held that neither reliance nor general reliance supported a duty. Road users could see that no improvements had been made; there was no particular or arbitrary denial of a uniform benefit routinely afforded elsewhere. Hazardous junctions and stretches of road vary greatly; improvement decisions are inherently site-specific and not equivalent to a standard inspection programme.

He further observed that when section 79’s predecessor was enacted, there was at that time no liability in damages even for breach of the statutory duty to maintain the highway itself. It was therefore implausible to infer a legislative intention that a discretionary visibility power should carry compensation liability when the maintenance duty did not.

Lord Hoffmann also stressed the policy implications. Imposing liability for non-exercise of improvement powers would necessarily expose local authorities’ budgetary choices and priority-setting to judicial scrutiny and would encourage “defensive” expenditure on road schemes at the expense of other services such as education and social care. He considered that drivers themselves bear the primary duty to take care, with compulsory motor insurance forming the main compensation mechanism for road accidents.

Accordingly, he held that the council owed no common law duty of care in respect of its omission to improve the junction, even though its officers had identified the hazard and contemplated remedial work. He would therefore allow the appeal and dismiss the claims against Norfolk County Council.

Implications

The decision clarifies and significantly limits the circumstances in which public authorities, particularly highway authorities, will be liable in negligence for failing to exercise statutory powers. It emphasises the conceptual and policy distinction between omissions and acts, and between public law duties and private law rights to damages.

The House confirms that mere existence of a statutory power (especially one framed as a discretion rather than a duty) does not ordinarily generate a common law duty to act. Any exception requires both that non-exercise would have been irrational (so that a public law duty effectively existed) and that the statute’s policy supports compensatory liability – a demanding test. The judgment also casts doubt on broad use of the policy/operations distinction and underscores the importance of statutory purpose, resource allocation and reliance in delimiting duties of care owed by public authorities.

Verdict: Appeal allowed. The orders of Judge Crawford Q.C. and the Court of Appeal were set aside and the respondent’s claims against Norfolk County Council were dismissed, with the respondent ordered to pay the council’s costs at all levels.

Source: Stovin v Wise [1996] UKHL 15