A street was vested in an urban authority under the Public Health Act 1875. It declined sharply and was bounded on one side by a retaining wall about five feet high separating it from land at a higher level. The land and the wall were the property of a private owner. In pursuance of section 161 of the Public Health Act the authority placed a lamp on the retaining wall but extinguished it every night soon after 9 o’clock in accordance with a resolution passed on 12 December 1918. On Christmas day at 11.30pm the plaintiff intended to go home by the street, missed his way without negligence, strayed onto the private land and fell over the retaining wall into the street, whereby he was injured. He brought an action against the urban authority for negligence in the performance of an alleged duty to light the street sufficiently.
Held: Section 161 of the Public Health Act conferred upon urban authorities a discretion but no obligation to light the streets in their districts. The defendants, who had begun to light the street, were not bound to continue to do so. Having done nothing to make the street dangerous they were under no obligation, whether by lighting or otherwise, to give warning of danger. Bankes LJ considered a number of authorities and said the following: ‘In each of those cases it was held that the plaintiff had failed to establish any liability on the part of the defendants for a mere failure to light a particular part of their district. And I think it will be found that wherever a plaintiff has succeeded in establishing a liability it has been not for merely omitting to light a part of the district but for making it dangerous unless it is sufficiently lighted, and then leaving it unlighted.’
and ‘Mr Easthan contended that the particular facts of this case made it independent of those authorities. He relied partly upon the dictum of Lord Esher MR to which I have referred, and partly on Lord Blackburn’s dictum in Geddis v Bann Reservoir Proprietors. Lord Blackburn there laid down the rule and applied it to the case before him. He said: ‘For I take it, without citing cases, that it is now thoroughly established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised, if it be done negligently.’
That is the rule. Then follows the application of the rule:
‘and I think that if by a reasonably exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, ‘negligence’ not to make such reasonable exercise of their powers.’
That which the Legislature has authorised in this case is the lighting of this particular district. If in lighting the district they act negligently, if for instance they should erect a lamp post and leave it unprotected in the middle of a highway or so close by the highway as to be a danger to persons passing along unless it was properly protected, or allow their gas to escape into someone’s house, those would be negligent acts in the course of doing that which the Legislature has authorised. But in my opinion Lord Blackburn’s rule is not applicable when it is left to the discretion of a local authority however long they shall keep the lamps alight in their district, whether they shall remove an existing lamp post, and whether they shall cease to supply gas to some lamps and continue to supply to others. This is not a case of a statutory power, like a power to make a reservoir and maintain a sufficient supply of water therein, negligently exercised; the appellants have merely exercised the discretion invested in them by the Legislature. They were under no obligation to place a lamp post at this particular spot; having placed it there they were not bound to keep it there; and if they kept it there they were not bound to supply it with gas, and are not to be made liable for merely extinguishing the light at any particular hour.”
Bankes LJ , Scrutton LJ
 3 KB 132
England and Wales
Distinguished – Stovin v Wise (Norfolk City Council, 3rd party) CA 16-Feb-1994
A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 February 2022; Ref: scu.180996