lawindexpro - Case Law

Stovin -v- Wise, Norfolk County Council

Court: Court Of Appeal

Coram: Nourse, Kennedy and Roch L.JJ

References: [1994] 3 All ER 467, [1994] 1 WLR 1124

JUDGMENT

16 February. The following judgments were handed down.

KENNEDY L.J. This is an appeal by a highway authority against a judgment of Judge Peter Crawford Q.C. who, on 27 July 1992, held that the authority was in breach of duty at common law and 30 per cent. to blame for a road accident which occurred at Wymondham, Norfolk at about 1 a.m. on Sunday, 11 December 1988.

The facts

The accident occurred at the junction of Cemetery Road with Station Road. The plaintiff was riding a motor cycle northwards along Station Road and was about to pass the end of Cemetery Road on his left hand side when the defendant drove an Austin Metro motor car out of that road across his path. He collided with the off-side of the motor car and although neither vehicle was travelling at any great speed the plaintiff sustained serious injuries. His claim for damages against the defendant was settled, but the defendant had joined the highway authority as a third party alleging that the highway authority was negligent and in breach of statutory duty in failing prior to the accident to take effective measures to reduce the risk to road users at what was known to be a dangerous junction. Three measures were suggested: (1) new or better warning signs on both roads; (2) adjustment of the stop line in Cemetery Road and of the white line markings on Station Road; (3) removal of the bank which restricted the view which the defendant would have had to her right when at the stop line in Cemetery Road. As the judge found, she could see no more than about 100 feet.

The bank was on land which belonged to British Rail, and on 5 January 1988, as a result of an approach by a local safety committee, the area civil engineer of British Rail wrote to the divisional surveyor of the highway authority suggesting some rearrangement of the white line markings. On 13 January 1988 Mr. Deller, a representative of the highway authority, met a representative of British Rail on site, and reported back to the divisional surveyor who on 14 January 1988 replied to the letter of 5 January 1988. He accepted that there was "a visibility problem" when turning as the defendant was later to turn on the occasion of the accident, but he did not consider that rearranging road markings would provide an adequate solution. The divisional surveyor favoured removing part of the bank and said that if British Rail agreed that work, which as the judge found would have cost under #1,000, it would be done by the highway authority at its expense. British Rail did not respond to that proposal at any time before the relevant accident, despite a meeting between representatives of British Rail and the highway authority on site on 4 February 1988.

The junction was not a very busy one. On 10 July 1991 between 7 a.m. and 7 p.m. only 45 vehicles turned as the defendant had been attempting to turn when the accident occurred, but there had been similar accidents at the junction in 1976, 1982 and on 6 March 1988 when the vehicle on Station Road was a police car. As the judge pointed out there may also have been other accidents which were not recorded.

Allegations not substantiated

As the judge found, additional warning signs, however commendable in themselves, would not have had any effect in relation to the relevant accident because the defendant stopped her vehicle at the mouth of Cemetery Road and the plaintiff was travelling at a proper speed. That finding is not challenged, so no more need be said about warning signs. Similarly there is no challenge to the judge's finding that the highway authority was entitled to conclude as it did that altering the carriageway markings would not provide a suitable solution, so the focus has to be on the solution which the highway authority did favour, namely the partial removal of the bank.

The Highways Act 1980

By virtue of section 41(1) of the Highways Act 1980 it was the duty of the highway authority to maintain the highway. The judge found that such a duty could not extend to land not forming part of the highway. In order to maintain the highway as required by section 41 the highway authority could not be required to remove a bank from land which they did not own. Such work would go beyond maintenance. It might be improvement, and that brings me to section 79(1), which, so far as relevant, provides:

"Where . . . the highway authority . . . deem it necessary for the prevention of danger arising from obstruction to the view of persons using the highway to impose restrictions with respect to any land at . . . any junction of the highway with a road . . . the authority may . . . serve a notice . . . (a) on the owner or occupier of the land, directing him to alter any wall . . . so as to cause it to conform with any requirements specified in the notice; . .."

Section 79(12) enables a recipient of the notice to recover from the highway authority the cost of complying with the notice, and section 79(17) defines wall as including any bank, so when British Rail failed to respond to the highway authority's letter early in 1988 the highway authority, if it deemed it necessary to prevent danger, could have served notice on British Rail pursuant to section 79 requiring British Rail to remove part of the bank, but the words of the statute make it clear that even when the highway authority has achieved the requisite state of mind the power to serve a notice is discretionary, and it was not invoked. There was therefore no duty imposed on the highway authority by section 79 upon which the plaintiff or the defendant could rely.

Breach of statutory duty

Before us, Mr. Nelson, for the defendant, has maintained that the highway authority was in breach of the statutory duty imposed by section 41, and that the judge was wrong to hold otherwise. He submitted that the word "highway" as used in section 41 of the Act of 1980 should not be narrowly construed. It should be so interpreted as to enable the highway authority to have regard to visibility. If a wall, bank or fence adjacent to the highway restricts visibility then in order to maintain the highway as required by section 41 the highway authority has to take some action in relation to the obstruction in order to comply with its obligation to maintain the highway because, as is clear from authorities such as Haydon v. Kent County Council [1978] Q.B. 343, maintenance means more than keeping the carriageway surface in reasonable repair. In that case the highway authority was held liable for failing to deal with snow and ice on the footpath, and the test, Mr. Nelson submitted, is that suggested by Sachs L.J. in Rider v. Rider [1973] Q.B. 505, namely whether the condition of the road was foreseeably dangerous to vehicles being driven in the way vehicles were normally driven on that road. The very existence of the sections 79 and 154 powers to serve notices on an adjoining landowner requiring the landowner to improve visibility, at a corner by removing obstructions or elsewhere by felling or cutting back overhanging trees, together with the statutory defence provided by section 58 is, it was submitted, some evidence of the width of the obligation imposed by section 41. The argument was that were the obligation not so wide as to cast upon the highway authority an obligation to remove obstructions to visibility even on adjoining land the powers would be unnecessary, and although at first sight such an obligation would seem to be far too onerous the provisions of section 58 make it acceptable and workable.

I agree with the judge that the statutory duty to maintain the highway does not extend to work on land not forming part of the highway. There is no definition of highway in the Act of 1980 beyond that in section 328(1), where it is defined as meaning "the whole or a part of a highway other than a ferry or waterway," but the common law definition is that a highway is a way over which there exists a public right of passage. It seems to me that despite what is contained in the other statutory provisions to which we have been referred it would be stretching the meaning of both "highway" and "maintain" if this court were to say that in order to comply with its duty to maintain the highway authority had to remove an obstruction to visibility situated on adjoining land. In my judgment sections 79 and 154 are merely sections which enable the highway authority to carry out functions which go beyond the scope of section 41. Accordingly I conclude that the judge was right not to find any relevant breach of statutory duty.

Common law

But the defendant contended and the judge held that the highway authority owed to the plaintiff as the road user a duty of care at common law. It is clear that a highway authority can act so as to give rise to such a duty: see, for example, Levine v. Morris [1970] 1 W.L.R. 71, where a highway authority positioned the leg of a road sign so close to the edge of the carriageway as foreseeably to endanger road users, but in the present case the highway authority did not create any danger. The most that can be said against the authority is that it failed to act to alleviate a danger of which it was aware. Was it under a legal duty so to act before the plaintiff's accident occurred? That is the question which, as it seems to me, lies at the heart of this case, at least so far as liability at common law is concerned. If the duty existed then the appeal fails, because the work could have been done in the time available, the limited resources required could and on the evidence would have been made available. The judge was plainly entitled to find as he did that persisting bad visibility was a cause of the accident, and if liability be established his apportionment is not in issue.

The judge did not say in detail how he envisaged that the common law duty arose in the circumstances of this case, so I drew upon Mr. Nelson's submissions as to that. He submitted that because the third party was the highway authority responsible for maintaining these roads, and because Parliament vested in the highway authority the power to take action to relieve bad visibility at a corner by serving notice pursuant to section 79, the circumstances were such as to enable a court to find that when the highway authority became aware of a danger due to impaired visibility and was satisfied from its own inquiries as to the existence of that danger and that it was sufficiently serious for it to be appropriate to relieve it by allocating to its relief some of the highway authority's own limited resources - all of which was true in the present case - then it became the duty of the highway authority at common law to take appropriate action. In those circumstances because the highway authority was the highway authority, and because it had the power to act, a duty of care was owed to all potential users of the affected lengths of highway. More than one type of action might have been appropriate. For example the highway authority might have considered straight away whether or not to serve notice pursuant to section 79, but it chose instead to seek the consent of the landowner, British Rail, to the partial removal of the mound. No criticism can be made of that choice or of the action taken pursuant to it up to the point when British Rail failed to respond to the highway authority's proposal. It then became the duty of the highway authority again to take appropriate action, in reality to press British Rail for a reply, and its failure to do so amounted to negligence at common law. It is clear from the whole of the evidence that British Rail was willing to assist, and if pressed would most probably have agreed, thus enabling the highway authority to complete the work before the plaintiff's accident occurred. Furthermore, having inspected the junction and concluded that it was dangerous, the highway authority should have taken proper steps to keep itself informed by the police of any accidents occurring at that location. Had it done so it would have learnt of the accident on 6 March 1988, and that knowledge would no doubt have encouraged both the highway authority and British Rail to improve the visibility as soon as possible.

The attack on common law liability

(A) General

In this appeal Mr. Stow, for the highway authority, contended that the authority cannot be found to be in breach of duty at common law in the way I have just indicated. First he submitted that the approach to the question of whether or not there existed a duty of care is based on a part of the decision of the House of Lords in Anns v. Merton London Borough Council [1978] A.C. 728 which is no longer considered to be good law, at least in cases concerning economic loss, and even if there was a duty of care Mr. Stow submitted that there was no breach. In a comprehensive review of the authorities he has drawn our attention to various propositions which he submitted support his general approach. He started, as we must start, by examining the statutory power to be found in section 79 of the Act of 1980, which does no more than enable a highway authority to serve notice on an adjoining landowner requiring that work to improve visibility be carried out. The highway authority cannot do the work itself. As Mr. Stow pointed out, the trial judge seems to have been in error about that, and the statutory penalty for non-compliance with the notice is modest. There cannot, Mr. Stow submitted, be attached to such a statutory power a duty to act, because in general the common law does not impose liability for a failure to act, even when damage can be foreseen as the probable result of the omission, and in this case it is relevant to note that the danger relied on is one which the highway authority did not itself create. Even if the highway authority had decided to exercise its statutory power to reduce the danger, its activities could not, it is submitted, have given rise to liability unless those activities themselves created additional danger which caused injury. It was also Mr. Stow's submission that in the circumstances of this case there was no sufficient proximity between the highway authority on the one hand and the plaintiff on the other to enable the plaintiff to recover damages for breach of duty.

(B) The earlier authorities

In Murphy v. Brentwood District Council [1991] 1 A.C. 398 the House of Lords reconsidered what should be the proper approach to the existence of a duty of care at common law, and departed from the earlier decision of the House in Anns v. Merton London Borough Council [1978] A.C. 728. Mr. Stow contended that the law which we should apply is therefore that to be found in the cases decided before 1978, and it is to those authorities that I now turn. The first case to which our attention was invited although not the earliest was the decision of the House of Lords in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, where the Home Office was held liable because prison officers were negligent in the exercise of their statutory powers and not because the Home Office had decided to bring Borstal trainees to an island and failed to contain them there. In fact they escaped and did foreseeable damage. Lord Reid said, at p. 1027:

"the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind."

Mr. Stow submitted that the earlier cases of Sheppard v. Glossop Corporation [1921] 3 K.B. 132 and East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74 show that the mere failure to exercise a statutory power, such as that to be found in section 79 of the Highways Act 1980, cannot give rise to liablity. In Sheppard's case [1921] 3 K.B. 132 the plaintiff fell late at night over a retaining wall in an area which the local authority chose to light up to 9 p.m., but his claim failed because, it was said, the defendants were under no duty to light a danger they did not create. Similarly in the East Suffolk case [1941] A.C. 74, where the rivers catchment board was so inefficient in exercising its power to carry out repair work that the respondent's land remained flooded for much longer than it need have been, the House of Lords held that the respondents could not recover. Viscount Simon L.C. was not satisfied as to causation. He said, at p. 85:

"In the present case the damage done by the flooding was not due to the exercise of the appellant's statutory powers at all it was due to the forces of nature which the appellants, albeit unskilfully, were endeavouring to counteract."

However the Lord Chancellor expressed his approval of the decision in Sheppard's case and concluded, at p. 88:

"It is admitted that the respondents would have no claim if the appellants had never intervened at all. In my opinion the respondents equally have no claim when the appellants do intervene, save in respect of such damage as flows from their intervention and as might have been avoided if their intervention had been more skilfully conducted."

In my judgment that passage makes clear the essential difference between Sheppard's case [1921] 3 K.B. 132 and the East Suffolk case [1941] A.C. 74 on the one hand and the present case on the other. In each of those earlier cases the plaintiff in seeking to recover damages was asserting that the defendant had inappropriately exercised his statutory power, and was met with the response that as the power need not have been exercised at all his claim was groundless, unless he could show that the way in which the power had been exercised had caused damage. In the present case the defendant does not rely on the exercise of the statutory power in section 79. The existence of that power is merely one of the circumstances which enables the defendant to say that the highway authority came under a duty of care, and at least at this stage it is not even part of the defendant's case that the statutory power should have been exercised. In those circumstances I do not believe that much assistance can be gained from Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, Sheppard v. Glossop Corporation [1921] 3 K.B. 132 or East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74

(C) Anns v. Merton London Borough Council

The possibility of a statutory power or a statutory duty being merely part of the setting giving rise to a duty at common law was one of the matters considered by the House of Lords in Anns v. Merton London Borough Council [1978] A.C. 728, where lessees in a block of flats alleged that they had suffered damage as a result of the local authority's failure to inspect the foundation in accordance with byelaws made pursuant to powers conferred by the Public Health Act 1936. When hearing an appeal on a preliminary limitation issue the House of Lords allowed the local authority to raise the question of whether in the circumstances the local authority was under any duty of care to the lessees. After referring to three authorities, the last of which was the Dorset Yacht case, Lord Wilberforce said at pp. 751-752:

"the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. . . ."

If that be the test it seems to me that in the present case, in the circumstances which existed after the highway authority had decided to act, there was a sufficient relationship of proximity between the authority and future road users such as the plaintiff. It should have been within the reasonable contemplation of the highway authority that prolonged failure to act for no good reason may be likely to cause damage to such road users, and I know of no considerations which ought to negative or reduce or limit the scope of that duty.

Having examined the relevant legislation Lord Wilberforce then considered whether a duty of care existed, and if so what was its extent, and in that context he said, at p. 754:

"Most, indeed probably all, statutes relating to public authorities or public bodies contain in them a large area of policy. The courts call this 'discretion' meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes also prescribe or at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many 'operational' powers or duties have in them some element of 'discretion.' It can safely be said that the more 'operational' a power or duty may be, the easier it is to superimpose upon it a common law duty of care. I do not think that it is right to limit this to a duty to avoid causing extra or additional damage beyond what must be expected to arise from the exercise of the power or duty. That may be correct when the act done under the statute inherently must adversely affect the interests of individuals. But many other acts can be done without causing harm to anyone - indeed may be directed to preventing harm from occurring. In these cases the duty is the normal one of taking care to avoid harm to those likely to be affected."

In the present case the distinction between the policy and operational area of the statutory power never arose, because the highway authority never got to the point of deciding whether or not to use the statutory power, but as Lord Wilberforce makes clear the existence of a power may create an obligation to consider whether or not to exercise it. Having referred to the East Suffolk case he said, at p. 755:

"to say that councils are under no duty to inspect, is not a sufficient statement of the position. They are under a duty to give proper consideration to the question whether they should inspect or not. Their immunity from attack, in the event of failure to inspect, in other words, though great is not absolute. And because it is not absolute, the necessary premise for the proposition 'if no duty to inspect, then no duty to take care in inspection' vanishes."

Lord Wilberforce may have had in mind action against a council by way of judicial review, but, at pp. 756-757, he set out what he considered to be two significant points about the East Suffolk case: first, the operational activity at the breach in the wall was still within a discretionary area, and secondly only Lord Atkin considered the case in relation to a duty of care at common law. That, to my mind, emphasises how difficult it is for the highway authority in the present case to derive any assistance from the East Suffolk case. In Anns's case Lord Salmon, at p. 765G, was "not at all sure what point of law the East Suffolk case is said to decide" and, at p. 766G, expressed his agreement with Lord Atkin's dissenting decision. Lord Atkin had spoken of the general obligation of a citizen to some persons in some circumstances to conduct himself with reasonable care so as not to injure those persons likely to be affected by his want of care. Mr. Stow's first submission to us was that even if Anns' case was correctly decided in relation to physical damage, as opposed to economic loss, the highway authority was not liable in law to contribute to the plaintiff's damages. Once it is clear how the case is put against the highway authority at common law it seems to me that the decision in Anns' case although not directly relevant does offer some support for the judge's decision. What I cannot accept is Mr. Stow's submission that the decision in the East Suffolk case affords a simple and reliable approach to the issue of common law liability in the present case, or his alternative submission, said to be based on Lord Salmon's support of Lord Atkin, that no common law duty could have arisen until the statutory power was exercised. (D)

Later decisions

We were referred to a number of decisions following Anns v. Merton London Borough Council [1978] A.C. 728, not all of them being decisions which I find to be of assistance. Bird v. Pearce [1979] R.T.R. 369 turned on the fact that the highway authority itself created a source of danger, and in Fellowes v. Rother District Council [1983] 1 All E.R. 513 the local authority was purporting to act in pursuance of a statutory power, which was not the situation in the present case. Similarly in West v. Buckinghamshire County Council [1985] R.T.R. 306 the highway authority had taken a policy decision in good faith, it had exercised its discretion, and its exercise of it could not be impugned. In Leigh and Sillavan Ltd. v. Aliakmon Shipping Co. Ltd. [1986] A.C. 785 Lord Brandon of Oakbrook, at p. 815, cautioned against treating what Lord Wilberforce said in Anns as "a universally applicable test of the existence and scope of a duty of care in the law of negligence." In Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 the High Court of Australia declined to follow Anns. Gibbs C.J. said, at p. 443:

". . . as a general rule, a failure to act is not negligent unless there is a duty to act. The duty may arise because of the conduct of the defendant himself or it may be created by statute."

Brennan J. rejected Lord Wilberforce's general assessment of the circumstances in which a duty of care may arise, saying at p. 481:

"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.' "

In Smith v. Littlewoods Organisation Ltd. [1987] A.C. 241 youngsters set fire to an empty cinema, and so damaged adjoining property. A claim against the cinema owners failed, Lord Goff of Chieveley observing, at p. 271B, that "There is no general duty upon a householder that he should act as a watchdog, or that his house should act as a bastion, to protect his neighbour's house."

In Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175 the Commissioner of Deposit-taking Companies was alleged to have been negligent in registering a company which subsequently went into liquidation, causing loss to the plaintiff, but the commissioner had to have regard to others as well as potential depositors, to whom he owed no statutory duty. Lord Keith of Kinkel in that case considered that it would be strange if a common law duty could be superimposed upon the statutory framework.

In Rowling v. Takaro Properties Ltd. [1988] A.C. 473 the Privy Council found it unnecessary to decide whether the New Zealand Minister of Finance owed a duty of care to the plaintiff, but, at p. 501, Lord Keith of Kinkel inclined to the opinion that the distinction between the policy and operational areas of decisions

"does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks: . . ."

Lord Keith went on to point out, at p. 501D-F, the necessity, before concluding that a duty of care should be imposed, of considering all the relevant circumstances, and expressed the fear that a too literal application of the observations of Lord Wilberforce in Anns' case "may be productive of a failure to have regard to, and to analyse and weigh, all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed." That was considered to be a question of "an intensely pragmatic character, well suited for gradual development, but requiring most careful analysis." So, as it seems to me, it is possible to discern a shift away from the general formulation favoured by Lord Wilberforce in Anns towards the Australian approach.

In Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 the House of Lords refused to hold that the police force was in breach of duty in failing to identify and apprehend an unknown criminal. The duty of care allegedly owed to a subsequent victim did not exist. Similarly in Clough v. Bussan [1990] 1 All E.R. 431 and in Ancell v. McDermott [1993] 4 All E.R. 355 the police were found not to owe a duty of care to warn highway users of hazards on the roads, but the police it must be emphasised are not the highway authority, which has to maintain the roads and may be vested with special power to ameliorate the danger in question.

In Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 Lord Bridge of Harwich, at p. 617G, pointed out that since Anns's case was decided the House of Lords and the Privy Council on a number of occasions had "emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope . . ." He continued, at pp. 617-618:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

Lord Bridge recognised that concepts such as proximity and fairness have little utility as practical tests, and suggested, at p. 618C, that the law had "moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes." So he, like Lord Keith of Kinkel in Rowling's case, is indicating a shift away from the wide proposition articulated in Anns' case towards the position adopted by the Australian High Court in Sutherland Shire Council v. Heyman, 157 C.L.R. 424. But Lord Bridge went on to point to the importance of the kind of damage sustained, saying, at p. 618F:

"It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss."

It is of importance to remember that in the present case we are dealing with an alleged duty of care to act so as to reduce the risk of causing injury to road users. This is not a case concerned with pure economic loss. Similarly in the Caparo case Lord Oliver of Aylmerton said, at p. 651:

" 'proximity' in cases such as this is an expression used not necessarily as indicating literally 'closeness' in a physical or metaphorical sense but merely as a convenient label to describe circumstances from which the law will attribute a duty of care. It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained."

He too favoured the approach adopted by Brennan J. in the Sutherland Shire Council case. In the light of those observations it seems to me that "proximity" cannot be regarded as an easy way of deciding whether or not liability exists in the present case. The real question is whether the circumstances were such that the law will attribute a duty of care.

(E) Murphy v. Brentwood District Council

In Murphy v. Brentwood District Council [1991] 1 A.C. 398 the trial judge and the Court of Appeal held that in passing foundation plans the local authority relied on negligent advice, and was therefore itself negligent. But the House of Lords, departing from Anns, held that the local authority in exercising its functions was not under a common law duty to safeguard a subsequent purchaser of a house from economic loss. So, in the context of the present case, it is, as it seems to me, important to recognise two things: first, that the decision in Murphy's case is confined to economic loss, more than one of their Lordships indicating that the position might be different if foreseeable personal injury were sustained. Lord Oliver of Aylmerton, for example, said, at p. 487:

"The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised as wrongful it is necessary to find some factor beyond the mere occurrence of the loss and the fact that its occurrence could be foreseen."

Second, the decision was concerned with the wide-ranging common law duty to which local authorities had been held to be subject as a result of their limited involvement in the erection of buildings which later turned out to be defective. On any view there was not the close link between alleged breach of duty and damage which there is when a road accident is found to be due in part to an obstruction to visibility which a highway authority charged with the duty of maintaining the highway had decided ought to be removed, and had been in a position to carry that decision into effect before the relevant accident occurred. As Lord Keith of Kinkel said in Murphy's case, at pp. 463-464:

"The question is whether the appellant council owed the respondent a duty to take reasonable care to safeguard him against the particular kind of damage which he has in fact suffered, which was not injury to person or health nor damage to anything other than the defective house itself: . . ."

Lord Keith said of the decision in Anns's case, at p. 471, that: ". . . it did not proceed on any basis of principle at all, but constituted a remarkable example of judicial legislation." And he said, at p. 472F:

". . . I would hold that Anns was wrongly decided as regards the scope of any private law duty of care resting upon local authorities in relation to their function of taking steps to secure compliance with building byelaws or regulations . . ."

That is the kernel of the decision in Murphy's case and in my judgment it does not cast doubt on the way in which liability is said to arise in the present case. As both Lord Keith and Lord Bridge pointed out, it was an underlying and questionable assumption in all of the Anns line of cases that the local authority would be held liable to the same extent as the negligent builder, who might probably be described as the primary tortfeasor. In the present case there is no suggestion of any tortfeasor other than the highway authority.

(F) Recent decisions

In Lavis v. Kent County Council (1992) 90 L.G.R. 416 the plaintiff motorcyclist collided with the kerb on a bend, and alleged that the highway authority was in breach of duty at common law in failing to exercise its statutory power to erect warning signs. His claim was struck out by the judge, but this court allowed his appeal. All three members of the court suggested that at least until discovery it is not really possible to tell whether the alleged breach of duty was in relation to a policy or an operational decision, a distinction which might be critical in relation to the plaintiff's prospects of success. Dillon L.J. also observed, at p. 423:

"The field of law on how far a public authority can be liable for injury to a third party occasioned by its exercise or failure to exercise statutory powers conferred on it by Parliament for the assistance or protection of the public is a field of law still in the process of development. The notion that found fruit in some areas that a public authority may be liable for damages for misfeasance if it does something in the exercise of a power and in some way or other does the wrong thing, but can never be liable for nonfeasance if, for whatever the reason, it simply fails to exercise an available power, does not now strike ordinary people as logically satisfactory."

That is not quite the position in the present case. Here the highway authority did not simply fail to act. It decided positively to proceed by seeking agreement from British Rail, and its failure to pursue that course is not an omission on which it can rely to escape liability, any more than a car driver could escape liability simply because his breach of duty consisted in a failure to apply the brakes. In each case the particular omission could properly be regarded as a negligent method of performing a task which gave rise to obligations, the task in the case of the highway authority being that of obtaining consent from British Rail, and in the case of the car driver, driving his vehicle.

In Lonrho Plc. v. Tebbit [1992] 4 All E.R. 280 Dillon L.J. recognised that in Rowling v. Takaro Properties Ltd. [1988] A.C. 473, 501 Lord Keith had cast doubt on the usefulness of the distinction between policy and operational decisions. In the Lonrho case this court was being urged to strike out a claim against the Secretary of State, who it was alleged had negligently failed to release an undertaking as soon as it ceased to be in the public interest to maintain it. Dillon L.J., having reminded himself of the incremental approach to the development of the tort of negligence now favoured by the House of Lords, said, at p. 287:

"the private interest of Lonrho in having the undertaking released as soon as it was no longer needed in the public interest is obvious. It does not therefore appal me that it should be suggested that, if the Secretary of State imposes the restrictions of the undertaking on Lonrho in the public interest, the Secretary of State should thereby assume a private law duty to Lonrho to release the undertaking when it is no longer needed and the restriction on Lonrho's freedom to conduct its business no longer has a rationale. There is an arguable case for Lonrho, therefore, against which may have to be set the sort of considerations militating against the imposition of liability which Lord Keith rehearses in Rowling v. Takaro Properties Ltd."

The facts in the present case are a long way from those of the Lonrho case, but if the highway authority in the present case could really escape liability on the basis that all it did was fail to act, the same defence ought to have been of assistance to the Secretary of State in the Lonrho case.

Conclusion

Having considered all the authorities to which our attention has been invited I am satisfied that the judge was right to find that the highway authority was in breach of duty at common law for the reasons which he gave, expanded by Mr. Nelson in the way that I have indicated earlier in this judgment. The highway authority alone had responsibility for the maintenance of the roads where the accident occurred. Many of its duties and powers, including the power in section 79, had as their principal object the promotion of the safety of road users. In this case the highway authority became aware of a dangerous restriction of visibility which it, and in reality it alone, had the physical and financial resources to eliminate, and because it judged the danger to be serious it decided to devote those resources to that end. In those circumstances it seems to me to be entirely in line not only with the Anns approach but also with the incremental approach to liability to say that in this case once the highway authority decided to seek the co-operation of British Rail it owed a duty of care to road users to press forward with its proposal with reasonable expedition. It was in breach of that duty, and as a result it contributed to the injury which the plaintiff sustained.

Finally it may be worth saying that the decision in this case should not lead to a flood of litigation against highway authorities for failing to improve visibility. The circumstances were probably unique. The danger was significant, it was known to the authority, and subject to a landowner's agreement the authority had actually decided to act at its own expense long before the relevant accident occurred. However, we are not directly concerned with the fate of other cases or other claimants. For the reasons which I have given I am satisfied that this appeal should be dismissed.

ROCH L.J.

I agree. The finding of Judge Crawford Q.C. that the highway authority owed a duty of care to persons travelling on this part of the highway in the particular and special circumstances of this case seems to me to be unassailable.

Where a danger of physical damage exists for users of the highway due to the construction and layout of the highway, the highway authority is the only person to whom road users can look to remedy the situtation. In my view the position of the highway authority bears a resemblance to that of an occupier of premises in relation to those whom he invites or allows to come upon his premises. In circumstances where the construction and layout of the highway present an obvious risk of physical injury to users of the highway or physical damage to vehicles a duty of care, in my judgment, arises. There is a foreseeability of personal injury or physical damage to vehicles, a proximity between the highway user and the highway authority and it is fair, just and reasonable that the law should impose a duty upon the highway authority.

This will still leave two questions to be answered. First, what is the scope of that duty? And second, has there been a breach of the duty, the scope of which has been determined by the court?

The duty in the present case is not a statutory one, but its scope can be considered in the light of the highway authority's statutory duty. Since the passing of the Highways (Miscellaneous Provisions) Act 1961, the highway authority has ceased to enjoy immunity from suit by a user of the highway provided the highway authority has remained inactive, the non-feasance rule, "that anomaly which has resulted in injustice to many people" being abolished by that Act.

The highway authority by Part V of the Highways Act 1980 is given wide powers of improving the highway, including the power to do drainage work on land adjoining the highway, the power to require owners of land adjoining the highway to carry out work on their land to improve visibility for those using the highway and the power to acquire land to facilitate the improvement of the layout of the highway. No doubt a highway authority has both under its statutory and common law obligations a wide discretion in deciding whether or not the state of the highway is such that it should act to remedy or alleviate a danger. Its assessment whether a danger exists, and, if it does, the extent of that danger and the weight that the danger should be given against the cost of rendering the highway reasonably safe and its assessment of the priority to be given to this particular part of the highway as against other parts of the highway under its jurisdiction are all matters for the highway authority and its decisions on such issues will not be easily overturned in the courts. It will only be if such a decision were to be perverse or absurd that there could be any possibility of the highway authority having a liability in negligence with regard to such a decision. The reason for this is that the court will probably not have the information on which to assess where the balance lies between the various factors which the highway authority has to and will have taken into account in reaching its decision whether or not to exercise a power: see Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1067F-1069B, per Lord Diplock.

None of these difficulties faced the defendant in this case, because the highway authority had, on its own evidence, in January 1988 assessed that this junction represented a risk to road users using this part of the highway normally of physical damage and that that situation was one which could and should be put right. The highway authority had decided to rectify the situation itself provided that the owner of the land, British Rail, gave its consent to the highway authority entering upon its land and regarding the bank which was obstructing motorists' vision. It had the funds to meet the modest cost of the necessary work and there was no reason for the work to be postponed for other projects. The judge also found on the balance of probability that, had a further letter been written to British Rail by the highway authority or some further contact made in January 1988, British Rail would have given the necessary consent and the work would have been completed prior to the accident in which the plaintiff received his injuries. The highway authority having decided to act and having commenced the process of remedying what was an obvious danger, in my judgment the judge was entitled to conclude that the highway authority was in breach of its common law duty of care towards the plaintiff and the defendant by failing to continue the process with reasonable expedition and by allowing the remedial process to lapse.

NOURSE L.J. I agree with both judgments.

ORDER

Appeal dismissed with costs.

Leave to appeal refused.

Crown Copyright acknowledged