East Suffolk Rivers Catchment Board v Kent [1940] UKHL 3 (09 December 1940)

A public board took an excessively long time to repair a flood-damaged sea wall under its statutory powers. The claimant's land remained flooded for longer than necessary. The House of Lords held the board was not liable as it had not created the danger, only failed to efficiently remedy it.

Facts

Following exceptionally high tides and a strong gale in December 1936, a sea wall in Suffolk was breached, causing the respondents’ pasture land to be flooded with salt water. The appellant, a catchment board established under the Land Drainage Act 1930, had statutory powers to maintain and improve sea defences, but no statutory duty to do so. The Board decided to exercise its power to repair the breach. However, due to inefficient methods and inadequate resources, the repair work took 178 days to complete. The respondents argued that had the Board acted with reasonable efficiency, the work could have been completed in 14 days. They sued the Board for the damage caused to their land during the period of unreasonable delay.

Issues

The central legal issue was whether a public authority, which possesses a statutory power but not a duty to act, becomes liable for damages if it decides to exercise that power, but does so inefficiently, thereby causing the claimant to suffer damage for a longer period than they would have had the power been exercised with reasonable dispatch. This required the court to determine if the Board’s conduct constituted actionable misfeasance (negligent performance) or simple non-feasance (failure to act, or act efficiently), for which it would not be liable.

Judgment

The House of Lords, by a majority of 4-1, allowed the appeal, finding the Catchment Board not liable. Lord Atkin delivered a powerful dissenting judgment.

Majority Opinion

The majority (Viscount Simon L.C., Lord Thankerton, Lord Romer and Lord Porter) held that the Board had no common law or statutory duty to repair the wall. In choosing to exercise their permissive statutory power, they would only be liable if their actions made the situation worse than it would have been if they had not intervened at all. Simply taking a long time to remedy a problem they did not create did not ground a claim in negligence. The damage was caused by the sea, not by the Board’s inefficient repair work. Their failure was an act of omission (non-feasance) in the course of an undertaking, not a positive act of negligence causing new damage (misfeasance).

As Viscount Simon L.C. stated: “The Respondents’ complaint is not that the Appellants, in the course of exercising their statutory powers, created a new source of danger or of damage… Their complaint is that the Appellants, having begun to exercise their statutory powers, did not act with reasonable dispatch, and that, if they had, the period for which the Respondents’ land was flooded would have been shortened. This is not a claim for damages caused by a new and mischievous act of the Appellants. It is a claim for damages arising because the Respondents were not sooner relieved from the continuation of the damage which they were already suffering.”

Lord Romer provided a clear summary of the principle: “Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power…. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.”

Dissenting Opinion

Lord Atkin strongly dissented. He argued that once the Board undertook the work, they assumed a duty to perform it with reasonable care, just as any private individual would. He rejected the distinction between misfeasance and non-feasance in this context.

Lord Atkin argued: “It is now well established that a public authority, whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or, as it is sometimes put, must not do it carelessly or improperly… In the present case the Respondents’ complaint is that the Appellants, having undertaken a work, and in the course of it, so negligently performed it as to injure the Respondents. It is not a case of non-feasance: it is a case of misfeasance.”

He contended that the Board’s inefficiency directly caused the extended period of damage, and for that loss, they should be liable.

Implications

The decision established a significant principle limiting the tortious liability of public authorities in the United Kingdom. It confirmed that where an authority acts under a permissive statutory power, it is generally not liable for failing to act or for acting inefficiently, unless its actions actively create a new danger or make the existing situation worse (‘add to the damage’). This protects public bodies from a flood of litigation concerning operational inefficiencies and preserves their discretion on how to allocate resources. However, the powerful dissent by Lord Atkin, applying the general principles of negligence from Donoghue v Stevenson, has remained influential and is often cited in cases challenging the scope of public authority immunity.

Verdict: The appeal was allowed. The East Suffolk Rivers Catchment Board was held not to be liable for the damages claimed.

Source: East Suffolk Rivers Catchment Board v Kent [1940] UKHL 3 (09 December 1940)