Stovin v Wise

The claimant, Mrs Wise, was riding her motorcycle along a road in Norfolk when a car driven by Mr Stovin emerged from a side junction and collided with her. Mrs Wise suffered personal injuries as a result of the collision. The accident occurred at a junction where visibility was severely restricted by an earth embankment situated on land adjoining the highway. The embankment was owned and maintained by Norfolk County Council ("the Council"), acting in its capacity as the highway authority for the area.

Prior to the accident, the Council's own highway surveyor had inspected the junction and identified the restricted sightlines as a significant hazard to road users. Internal correspondence demonstrated that the Council had recommended remedial works, specifically the removal or cutting back of the embankment, and had even approached the landowner about the possibility of carrying out such works. However, no action was ever taken and the embankment remained in place at the time of the collision.

Mrs Wise brought proceedings in negligence against both Mr Stovin, as the driver of the car, and Norfolk County Council, as the highway authority that had failed to act upon its own identification of the hazard. The Council's potential liability was framed not on the basis that it had created the danger, but on the basis that it had failed to exercise its statutory powers to abate a known risk to road users.

At first instance, the trial judge apportioned liability between Mr Stovin and the Council. The Court of Appeal upheld the finding of liability against the Council, holding that the particular combination of the Council's knowledge of the hazard, its statutory powers to require removal of the obstruction, and the minimal cost of the remedial works were together sufficient to generate a duty of care in favour of road users. The Council appealed to the House of Lords.

The case therefore came before the House of Lords at a time when the scope of public authority liability in negligence was under active judicial reconsideration. The House had recently examined related questions in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, and the principles governing when, if ever, the failure by a statutory body to exercise its powers could sound in damages at common law remained contentious and uncertain.

The primary issue before the House of Lords was whether a highway authority, which has statutory powers to require the removal of an obstruction to visibility on land adjoining a highway, owes a common law duty of care in negligence to road users when it fails to exercise those powers, even after it has identified the hazard and considered taking remedial action.

A subsidiary issue concerned the relationship between statutory discretion and the existence of a common law duty of care: specifically, whether the conferral of a power (as opposed to a duty) upon a public authority by Parliament can, of itself or in combination with other circumstances, give rise to an enforceable private law obligation to exercise that power in a particular manner or at all.

A further question arose as to whether the circumstances — in particular the Council's actual knowledge of the specific hazard and the relatively modest cost of remediation — could constitute "special circumstances" sufficient to displace the general rule that public authorities are not liable at common law for their omissions.

Lord Hoffmann, with whom Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed, delivered the leading speech for the majority. He began by identifying the fundamental distinction in the law of tort between acts and omissions. Whereas a person who by a positive act creates a danger is generally liable to those injured by that danger, the common law has historically been far more reluctant to impose liability for a failure to act, even where action might have prevented harm to another. This distinction reflects deep-seated principles about the proper limits of legal obligation and the autonomy of individuals and institutions to decide how to deploy their resources.

Lord Hoffmann acknowledged that the reluctance to impose liability for omissions is not absolute. Exceptions arise where a "special relationship" exists between the defendant and the claimant of a kind recognised by law as generating a positive duty to act. Such relationships may arise by assumption of responsibility, by the creation of a situation of dependence, or by certain categories of relationship such as employer and employee. However, in the absence of such a relationship, the mere foreseeability that inaction will cause harm to an identifiable class of persons does not suffice to generate a duty of care.

Turning to the position of public authorities, Lord Hoffmann observed that the conferral of a statutory power upon a public body does not, without more, create a common law duty to exercise that power. Parliament's decision to confer a discretionary power rather than to impose a mandatory duty is itself a choice about the allocation of responsibility and resources, and it is not for the courts to convert that discretionary power into a legally enforceable obligation by the mechanism of the law of negligence. This principle had been affirmed by the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, and the majority regarded it as the correct and settled approach.

Lord Hoffmann drew extensively on the earlier decision in East Suffolk Rivers Catchment Board v Kent [1941] AC 74, in which the House of Lords had held that a drainage authority which had exercised its powers badly, thereby prolonging the flooding of the plaintiff's land, was not liable in negligence because it had no duty to exercise those powers at all. The principle derived from that case — that a body cannot be liable for failing to confer a benefit upon another person, even where it has the statutory power to do so — applied with equal force in the present case. The Council's failure to exercise its power to remove the embankment was analogous: its inaction had not made Mrs Wise's position worse; it had simply failed to improve it.

Lord Hoffmann also considered the relevance of Anns v Merton London Borough Council [1978] AC 728, in which Lord Wilberforce had suggested a two-stage test for the existence of a duty of care that had been interpreted as potentially supportive of wide-ranging public authority liability. However, Lord Hoffmann noted that Anns had since been overruled in Murphy v Brentwood District Council [1991] 1 AC 398, and that the expansive approach to public authority liability which it had seemed to endorse was no longer good law. The approach in Anns was therefore distinguished and could not provide the basis for a duty in the present case.

A critical element of Lord Hoffmann's reasoning concerned what he described as the requirements for imposing liability upon a public authority for the exercise of a statutory power. He suggested that two conditions would need to be satisfied: first, it would have to be irrational for the authority not to have exercised the power (in the sense that a decision not to act was outside the range of reasonable responses open to the authority); and second, there would need to be some exceptional justification in policy for translating the public law duty to act reasonably into a private law duty of care. Neither condition was satisfied on the facts of the present case. The Council's decision about whether and when to commit resources to improving road safety at this particular junction was precisely the kind of policy and resource-allocation decision that Parliament had entrusted to the authority's discretion.

Lord Hoffmann also considered the analogous position of private individuals and bodies in the context of the highway. He noted that the traditional common law rule was that a highway authority was not liable for non-repair of the highway (non-feasance), a principle that had been modified by statute but which nonetheless illustrated the reluctance of the law to impose liability for omissions in this context. The non-feasance rule, long established in highway law, reflected the same underlying values that animated the broader principle governing public authority omissions. The Council's failure to remove the embankment was in substance a case of non-feasance, not of misfeasance, and the law did not impose liability for the former.

On the question of whether the Council had assumed responsibility to road users by virtue of its internal deliberations and communications with the landowner, Lord Hoffmann rejected the argument that such steps could generate a duty of care. The doctrine of assumption of responsibility, as applied in cases such as Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, requires a voluntary undertaking to the claimant of a kind upon which the claimant could reasonably rely. The Council's internal processes and its approach to the landowner were not communications to road users generally and could not constitute an assumption of responsibility to Mrs Wise or to road users as a class.

Lord Hoffmann added, in what he acknowledged to be obiter, that even if a duty of care had been established, serious difficulties would arise in relation to justiciability. Decisions about the allocation of limited highway maintenance resources between competing demands across the network are quintessentially matters of policy that are not suitable for adjudication by courts. Imposing negligence liability would require courts to second-guess the priorities set by elected and accountable public authorities, a function that the courts are institutionally ill-equipped to perform. He also noted that private law litigation is not the appropriate mechanism for improving standards of public administration, which is better achieved through statutory remedies, public law challenges, and the political process.

Lords Nicholls of Birkenhead and Slynn of Hadley dissented. Lord Nicholls considered that the majority's approach drew too sharp a distinction between the position of public authorities and that of private individuals. In his view, where a public authority has identified a specific hazard, has the power to remedy it at modest cost, and fails to act, the combination of those factors — foreseeability of harm, specific knowledge, and the availability of a ready remedy — is sufficient to bring the case within the scope of a duty of care. Lord Nicholls drew upon the broad approach endorsed in Home Office v Dorset Yacht Co Ltd [1970] AC 1004, in which Lord Reid had suggested that the neighbour principle from Donoghue v Stevenson should be applied unless there was some justification for excluding it. On the facts, he saw no sufficient justification for excluding liability.

Lord Slynn agreed with Lord Nicholls in dissent. He emphasised that the Council's own internal findings demonstrated that the junction was dangerous, that action was both feasible and inexpensive, and that there was no rational basis for inaction. In his view, once the Council had effectively decided to carry out the works but failed to do so, it had crossed the threshold from the exercise of a pure policy discretion into the realm where the law could and should impose a duty. The dissenting justices regarded the majority's position as placing an unwarranted premium on the form of inaction over the substance of a decision that had effectively been made but not implemented.

The House of Lords, by a majority of three to two, allowed the Council's appeal and held that Norfolk County Council owed no common law duty of care to road users in respect of its failure to exercise its statutory powers to remove the embankment. The claim against the Council was dismissed. Mr Stovin's liability to Mrs Wise for his own negligent driving was not disturbed, but the apportionment of liability to the Council was set aside.

The majority held as a matter of principle that a statutory power does not give rise to a common law duty of care merely because the power exists, because the authority is aware of a specific hazard, or because the cost of exercising the power would be modest. Something more — some special relationship or assumption of responsibility — would be required before liability could arise, and no such additional element was present on the facts.

The decision confirmed that the critical distinction between misfeasance (actively creating or worsening a danger) and non-feasance (failing to remove an existing danger) is maintained in the law governing public authority liability, and that the latter does not, without exceptional circumstances, generate tortious liability in English law.

Stovin v Wise [1996] AC 923 is the leading House of Lords authority for the proposition that public authorities are not generally liable in negligence for omissions, and that the existence of a statutory power does not, by itself or in combination with knowledge of a specific hazard, create a parallel common law duty of care. It represents a significant retrenchment from the more expansive approach to public authority liability associated with Anns v Merton and marks a high point in the judiciary's insistence upon maintaining a clear boundary between public law obligations and private law duties of care.

The decision has been influential in shaping subsequent case law on the liability of public authorities. It was applied and developed in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057, where the House of Lords confirmed that a highway authority's failure to paint a warning on the road surface did not give rise to a duty of care, applying and extending the reasoning in Stovin. Lord Hoffmann, again writing for the majority in Gorringe, reaffirmed that a statutory power cannot in itself generate a common law duty of care and that the courts should be slow to use negligence doctrine to fill gaps left by Parliament's choice of statutory framework.

The misfeasance/non-feasance distinction articulated in