Stovin v Wise, Norfolk County Council (Third Party): HL 24 Jul 1996

Statutory Duty Does Not Create Common Law Duty

The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves starting with a prima facie assumption that a duty of care exists if it is reasonably foreseeable that carelessness may cause damage and then asking 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 arise’. Subsequent decisions in this House and the Privy Council have preferred to approach the question the other way round, starting with situations in which a duty has been held to exist and then asking whether there are considerations of analogy, policy, fairness and justice for extending it to cover a new situation: see for example Lord Bridge in Caparo (supra) . . It can be said that, provided that the considerations of policy etc. are properly analysed, it should not matter whether one starts from one end or the other. On the other hand the assumption from which one starts makes a great deal of difference if the analysis is wrong. The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from the person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not.’ ‘A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed intention of Parliament.’ and ‘the minimum preconditions 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.’
Lord Hoffmann said: ‘In my view the creation of a duty of care upon a highway authority, even on grounds of irrationality in failing to exercise a power, would inevitably expose the authority’s budgetary decisions to judicial inquiry. This would distort the priorities of local authorities, which would be bound to try to play safe by increasing their spending on road improvements rather than risk enormous liabilities for personal injury accidents. They will spend less on education or social services. I think that it is important, before extending the duty of care owed by public authorities, to consider the cost to the community of the defensive measures which they are likely to take in order to avoid liability. . .’ Statutory bodies do not occupy a special position so far as liability for nuisance is concerned unless statute puts them in that special position: ‘Since Mersey Docks and Harbour Board Trustees v Gibbs (1866) L.R. 1 H.L. 93 it has been clear law that in the absence of express statutory authority, a public body is in principle liable for torts in the same way as a private person. But its statutory powers or duties may restrict its liability. For example, it may be authorised to do something which necessarily involves committing what would otherwise be a tort. In such a case it will not be liable: Allen v Gulf Oil Refining Ltd [1981] AC 1001. Or it may have discretionary powers which enable it to do things to achieve a statutory purpose notwithstanding that they involve a foreseeable risk of damage to others. In such a case, a bona fide exercise of the discretion will not attract liability: . . . .’.


Lord Hoffmann, Lord Nicholls of Birkenhead


Gazette 25-Sep-1996, Times 26-Jul-1996, [1996] AC 923, [1996] UKHL 15, [1996] 3 All ER 801, [1996] 3 WLR 389




Highways Act 1980 41(1)


England and Wales


Appeal fromStovin 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 . .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
ApprovedSutherland Shire Council v Heyman 4-Jul-1985
(High Court of Australia) The court considered a possible extension of the law of negligence.
Brennan J said: ‘the law should develop novel categories of negligence incrementally and by analogy with established categories. ‘
Dean J said: . .

Cited by:

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The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
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The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
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Statutory Duty Not Extended by Common Law
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AppliedCapital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .
CitedSandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
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Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
CitedJane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
CitedOLL Ltd v Secretary of State for Transport QBD 22-Jul-1997
Coastguard Not liable in Negligence
Eight children with a teacher and two instructors set off on a canoeing trip but did not return. They got into difficulties at sea. Two became separated from the rest. The canoes capsized and sank. Some tried to swim ashore. Two more members became . .
CitedBybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
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The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
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CitedNeil Martin Ltd v Revenue and Customs Commissioners 28-Sep-2006
The claimant sought damages from the revenue for their failure properly to process his claim for a sub-contractor’s certificate which had led to losses.
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CitedVellino v Chief Constable of Greater Manchester Police CA 31-Jul-2001
The police were not under any duty to protect someone who had been arrested from injuring himself in an attempt to escape. The claimant had a history of seeking to avoid capture by jumping from his flat window. On this occasion he injured himself in . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedK v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
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CitedConnor v Surrey County Council CA 18-Mar-2010
The claimant teacher said that she suffered personal injury from stress after the board of governors improperly failed to protect her from from false complaints. The Council now appealed against an award of substantial damages.
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CitedHome Office v Mohammed and Others CA 29-Mar-2011
The claimants sought damages saying that after a decision had been made that they should receive indefinite leave to remain in 2001 (latest), the leave was not issued until 2007 (earliest) thus causing them severe losses. The defendant now appealed . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
CitedDodson v Environment Agency QBD 28-Feb-2013
The claimant asserted that the steps taken by the defendant to encourage wildlife in the estuary had led to otters predating his fish farm stocks, and that the claimant had not been informed of this, in particular as to the construction of otter . .
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
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CitedPoole Borough Council v GN and Another SC 6-Jun-2019
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Lists of cited by and citing cases may be incomplete.

Administrative, Personal Injury, Local Government

Leading Case

Updated: 11 February 2022; Ref: scu.89580