Stovin v Wise [1996] UKHL 15

A motorcyclist was injured at a dangerous junction. He sued the council for failing to exercise its statutory power to remove an obstruction. The House of Lords held the council was not liable for this omission, establishing that a statutory power does not create a common law duty of care.

Facts

The plaintiff, Mr Stovin, was seriously injured when his motorcycle collided with a car driven by the defendant, Mrs Wise, at a T-junction. Visibility at the junction was dangerously restricted by a bank of earth on land owned by British Rail. The highway authority, Norfolk County Council, was aware of the danger. It had discussed the matter with British Rail and had decided in principle that the remedial work was necessary. The Council had a statutory power under the Highways Act 1980 to serve a notice on the landowner to remove the obstruction and, if the landowner failed to comply, to enter the land and carry out the work itself. However, it had not exercised this power by the time of the accident. Mr Stovin sued Mrs Wise, who was found to be 70% liable. He also sued the Council for negligence, alleging it had breached a duty of care by its omission, i.e., failing to exercise its statutory power to remove the bank of earth.

Issues

The central legal issue before the House of Lords was whether a public authority could be held liable in negligence for failing to exercise a statutory power. Specifically, did the Council’s statutory power to remove a dangerous obstruction on the highway give rise to a common law duty of care owed to individual road users like Mr Stovin? The case required an examination of the circumstances in which a statutory ‘power’ can become a common law ‘duty’, and the distinction between policy decisions and operational failures in the context of public authority liability.

Judgment

By a 3-2 majority, the House of Lords allowed the Council’s appeal, holding that it was not liable in negligence. The majority found that a mere statutory power did not, in itself, create a common law duty of care. Lord Hoffmann delivered the leading speech for the majority.

Lord Hoffmann’s Majority Speech

Lord Hoffmann began by drawing a fundamental distinction between statutory duties and powers, and between liability for acts and liability for omissions. He affirmed the general common law principle that there is no liability for a pure omission. He stated:

It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.

He argued that imposing liability for omissions required more than just foreseeability of harm; it required a special relationship between the defendant and claimant. In the context of a public body’s statutory powers, he reasoned that imposing a duty of care for failure to act could lead to indeterminate liability and would involve the courts in scrutinising political and budgetary decisions, for which they are ill-suited. He criticised the policy/operational distinction from Anns v Merton London Borough Council as an ‘inadequate tool’.

Instead, Lord Hoffmann proposed a stricter test for when a duty of care might arise from a failure to exercise a statutory power. He concluded that, as a minimum, two conditions would have to be satisfied:

First, that it would 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.

Applying this test, he found that the Council’s failure to act was not irrational in the public law sense. It was a matter of discretion, involving the allocation of finite resources. Furthermore, he found nothing in the policy of the Highways Act 1980 to suggest that Parliament intended that individuals should be compensated for a failure to exercise these powers. Therefore, no private law duty of care arose.

Dissenting Judgments

Lord Nicholls and Lord Slynn dissented. Lord Nicholls argued that once the Council had become aware of the specific danger, had decided that remedial work was necessary, and had begun negotiations, the matter had moved from the realm of policy into the operational sphere. At that point, a duty of care to road users arose. He stated:

In the present case Norfolk County Council was the highway authority. It had a statutory power to require the removal of the bank… It was aware of the danger. It decided to take action to remove the danger. It entered into negotiations with the landowner. But it did not press the matter home… In my view, in these circumstances the council came under a duty of care to road users to see that the danger was removed.

Implications

The decision in Stovin v Wise represents a significant landmark in the law of negligence concerning public authorities. It marked a decisive retreat from the more expansive approach to liability established in Anns v Merton LBC and tightened the requirements for imposing a duty of care for an omission. The judgment established a high threshold for claimants, requiring proof that the authority’s failure to act was irrational in a public law sense before a private law claim could even be considered. This has made it substantially more difficult to sue public bodies for failing to provide a benefit or protection. The case underscores the judiciary’s reluctance to interfere with the discretionary, resource-sensitive decisions of democratically-accountable public authorities, effectively ring-fencing many ‘policy’ decisions from tortious liability.

Verdict: The council’s appeal was allowed; the council was held not liable.

Source: Stovin v Wise [1996] UKHL 15