Non‐Feasance Revisited
| Published date | 01 November 1955 |
| Author | Geoffrey Sawer |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00321.x |
| Date | 01 November 1955 |
THE
MODERN
LAW
REVIEW
Volume
18
November
1955
No.
6
NON-FEASANCE REVISITED
IN
1914,
the late Sir William Harrison Moore made the first con-
siderable examination of the doctrines of non-feasance and mis-
feasance as applied to road and drainage authorities.’ He pointed
out that such distinctions occur in many parts of the law, instanc-
ing in particular the role they played in the early history of English
tort and assumpsit
2;
it
may be added that even in Aquilian
liability for fault under the Roman law,
it
has sometimes been
found necessary for policy reasons to recognise areas of non-liability
for
‘‘
mere omissions.” But he showed that
it
is in administrative
law that the distinction has come closest to a precise technical
doctrine, and to this we may add that in the modern Roman-Dutch
law of South Africa,
it
is in the sphere of the liability of road
authorities that the rule about non-liability for
“
omissions
”
under
the Aquilian law has had its most specific application-though
doubtless here as with other subjects the example of English law
has had its effe~t.~
It
is interesting
to
trace through Moore’s
articles a development
of
opinion similar to that which can be
traced through judicial decisions and dicta, and non-judicial
writings, ever since. In some passages, Moore praises the policy
which he finds in the decisions making administrative authorities
not liable for
“
mere non-feasance
”;
he says
it
is
“
a rule especially
appropriate to a comparatively new class of incorporated public
authorities which (are) not the grantees of conditional rights and
privileges voluntarily accepted by them, but mere bearers
of
burdens,” and he states that the rule
“
is not limited to the case
of non-feasance on
through the English
Zsle.toorth
L.
B.6
on,
1
30
L.Q.R.
276, 415.
a highway.”5 But after fighting his way
drainage cases from
Glossop
v.
Heston
and
he finished with a series of recommendations
Moore
was
Professor
of
Law
at. the University of
Melbourne.
2
Ibid.,
at
p.
270.
a
See
F.
H.
Lawson,
Negligence in the Civil Law,
esp.
pp.
32-36.
4
See
T.
W.
Price
in
66 South
African
1,.
J.
171, 269,
quoted
by
1,awon;
Hallilaell
v.
Johannesbura,
1912
A.1).
6.59.
5
30
L.Q.R. at
p.
417.
6
(1879) 12 Ch.D.
102
(
541
Voi,.
18
35
942
THE
MODERN
LAW
REVIEW
\’OI..
!?r
which would confine the non-feasance rule in its full significancc
to highways.‘ In
1925,
Gleeson Robinson reached a similar con-
clusion.” In
Pride
of
Derby
v.
British Cel~nese,~
Evershed M.R.
deprecated the use of the term “non-feasance” in relation to
drainage authorities,1° while Denning,
L.J.
said
“
it
would be very
unfortunate
if
the exemption for non-feasance was extended to
local authorities generally,” and endeavoured to explain away the
use of the word
“
non-feasance
”
in drainage contexts
ll;
Denning
L.J.
described the dictum of Scrutton
L.J.
in
Hesketh
v.
Birmingham
l2
(“
the general rule is that a local authority is liable
for misfeasance, but not for non-feasance
”),
as a case of Homer
nodding.
BASIC NON-FEASANCE
There is one sense in which the absence
of
a legal liability for
omission to act is accepted for public authorities generally;
it
is
strongly presumed that the citizen cannot complain about their
failure to provide him with a general service
or
advantage, such
as a highway
or
a drain-certainly not
if
the authority is merely
empowered to provide the service, and usually not even when the
authority is commanded to do
so.
Lord Romer said in
East
Suffolk Rivers C.atchment Board
v.
Kent
la:
‘‘
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.” The case of duty has always
presented more difficulty.
It
is unlikely that in
Couch
v.
Steel
l4
Lord Campbell intended to lay down
a
general doctrine that every
statutory duty creates a correlative right in individuals who might
benefit from the performance
of
the duty, but on a loose reading
the dictum he quotes from Comyns’
Digest
l5
might be considered
as supporting
so
wide a rule, and in
City
of
Vancouver
v.
McPhalen,l6
Idington
J.
of the Supreme Court of Canada expressed
his sorrow that the courts had not given
Couch
v.
Steel
a wide
extension, instead of niggling
it
down to a minimal operation in
administrative law contexts. His Honour said
:
“
The sooner the
distinction between non-feasance and misfeasance as applicable to
actions on a statute of which the plain language indicates
it
can be
as grossly violated by an omission to do something, as by doing
7
30
L.Q.R.
at
pp.
426
et
aeq.
8
Public Authorities
and
Legal
Liability, pp.
134
et
seq.
9
rig531
Ch.
149
(c.A.).
10
c19531
Ch.
at
pp.
175-6.
11
Ibid..
at
p.
188.
12
[1924]
1
K.B.
260
at
p.
271.
1s
119411
A.C.
74
at
D.
102.
14
11854f3
E.
L
B.
LO2
15
“Action
upon
Statute”
(F).
Thager
shows
(27
Harv.L.R. 332) that the
passage
is
from a judgment
of
Lord
Holt
(6
Mod.
27)
dealing with statutes
in aid
of
vested nghte.
**
(191
I)
45
S.C.R.
194.
Nov.
1955
NON-FEASANCE REVISITED
543
a wrongful act forbidden by
it,
is discarded, the better.” The
Canadian Supreme Court accordingly held that the Vancouver
Incorporation’ Act,
1900,
imposing a duty
on
the city to repair
roads, enabled citizens to sue for negligent non-repair.
It
is a
decision which can be reconciled with that of the House of Lords
to the contrary in
Cowley
v.
Newmarket
Local
Board
l7
only by a
quibble. The narrower and well-established rule of the early
nineteenth-century common law that indictable breach of a statute
gives rise to an action for damages at the suit of one specially
injured
I*
seems to have suffered, more by silence than anything
else, a similar subjection to the modern requirement that the
statute must be intended to benefit a particular class of whom the
plaintiff is one
Is;
in any event, modern administrative statutes
rarely impose a duty to provide services, and those that do fre-
quently provide summary
or
other remedies
so
as to exclude
indictment and thus make the narrower rule inapplicable.
There is a slide from this basic non-feasance situation to the
situation, established by
Mersey Docks Trust
v.
Gibbs,20
of liability
on ordinary principles modified by any relevant provisions of the
statutes governing the authority in question. The courts fre-
quently speak as if liability depends wholly on the statute_, but as
Moore pointed out
21
the usual function of the statute is to estab-
lish a relationship (of ownership, control,
or
in
*
general respon-
sibility) between an authority and a set of activities, such that
liability for the activities on grounds taken from the general law
can reasonably be attributed to the authority.
It
will be suggested
later that policy considerations have played a major part in these
cases.
So
far as “logical” development of concepts has been
important, most of it has stemmed from the
Mersey
Docks
v.
Gibbs
end of the slide; the familiar categories of tort-liability pro-
vide many more premises for judicial reasoning than can a bare
assertion of non-liability. Nevertheless, reasoning can be found
which takes its start from the other end of the slide-from the
basic non-feasance situation.
For
example, Jordan
C.J.,
dealing
with a drainage problem in the Supreme Court of New South
Wales,” proceeded immediately from non-liability for failure to
provide a drain to the case of a drain duly provided which removes
surplus water from a property, but is carelessly allowed by the
authority to become choked and hence
“
less ameliorative
”;
this,
17
[1892]
A.C.
345.
18
Lynce
Regis
v.
Hcnley
(1834)
8
Bli.(N.s.)
690
(H.L.).
19
The
existence
of
alternative
remedies
in
t.he statute hax always
pruvidrd
another possible explanation of the ca6es
denying
a private action,
YO
that the
Situation is made clear only by exanlining the cases (nia,inly
on
factory legisla-
tion)
sustciirrirrg
such action
;
t.ypica,l dicta
froni
both series are
cited
in
Robinson,
Public:
Authori!iee
ntd
I,rguZ
Iinbility,
at pp. 10i-5.
20
(1.866)
L.R.
I
H.11.
93.
21
30
L.Q.R.
at
p.
“0.
22
Gampisi
v.
Water.
ctc..
Concmsn.
(1936)
36
S.R.(N.S.W.)
631
;it. p.
639.
544
THE MODERN LAW REVIEW
VOL.
18
observes Jordan
C.J.,
would also be a case of non-feasance and
there would be no liability to the property owner.
It
is a short
step from this situation to the one which caused such strong
differences of opinion during the passage through the courts of
East
Suflolk
Rivers Catchment Board
v.
Kent
23;
the defendant
authority intervened, when it could without liability have remained
aloof, in order to drain flood waters from the plaintiff's fields, but
did
so
with such ineptitude that the fields were left flooded for a
longer time than they would have been
if
the operation had been
performed with reasonable skill. Lord Atkin, dissenting, had no
difficulty in fitting this into a concept establishing liability, and
advanced policy reasons for following such a course.24 The
majority, holding for the authority, applied the reasoning adum-
brated by Jordan
C.J.
in
Campisi (supra);
inadequate
"
ameliora-
tion
"
was no more actionable than none at all, but Lord Porter at
least felt sufficiently uneasy about the logic to answer Lord Atkin
with counter-considerations of policy as
A
third step might also be regarded as developing
"
logically
"
from basic non-feasance. An authority inherits, whether from
public
or
private predecessors, a service which when inherited is
injuriously defective in respects which the authority has power,
express
or
implied, to remedy. The courts will not expect the
authority to bring in the millennium overnight, but
if
a plaintiff
allows the authority a decent interval in which to learn of the
situation and take suitable action, can he then sue for failure to do
so?
If
we concentrate on the statutory power
or
duty to maintain
and repair, this situation looks very like basic non-feasance, failure
to confer an expected benefit; the decisions denying liability in
Glossop
v.
Heston and Isleworth,26 Att.-Gen.
v.
Dorking Union
27
(drainage) and
Shield
v.
HuonZ8
(road and drain) can be read
thus. But
if
we concentrate on the relationship of the authority
to a state of affairs in being which would constitute in private hands
a
nuisance, then the important analogies seem to come from the
general law of torts; it would be unhistorical to expect profound
uneasiness at a decision in favour of immunity in the
Court
of
Appeal during the nineteenth century, since the liability of
occupiers for nuisances not of their making
or
adoption was not
clearly settled until well into the t~entieth,~~ but by
1911
Parker
J.
was beginning a campaign to discredit the
Glosaop
decision.30
23
24
26
27
zn
29
:i
0
[1941] A.C. 74.
Ibid..
at
p.
88.
(1879) 12 Ch.1).
10.2.
(1861)
20
Ch.D. 595
((!.A.).
(1916) 21 C.L.R. 109
(H.C.
of
Aristr.).
Sedleigh-Denfield
v.
O'Callaghan
[1940] A.C. 860.
Jones
v.
Llanwrst
U.
C.
[1911]
1
Ch. 393 at
p.
404. Parker
J.
purported to
find difficulty in discovering an agreed
ratio
decidendi
in
Glossop.
It
seems
plain enough, however, that the observations
of
Brett and Cotton
LJJ.
in
Glossop
were supplementary to those
of
James
L.J.,
not in disagreement with
hir reasoning; otherwise it iR difficult to believe that they wonlil have
23
[bid..
at
1).
106.
Nov.
1955
NON-FEASANCE
REVISITED
545
In the drainage cases, a complicating factor was the possible
existence of prescriptive private rights to discharge into
“
inherited
”
sewers, and the absence of any legislative machinery
for disposing of such claims. In the United Kingdom and in many
parts of the Commonwealth, the problem of inherited nuisance is
unlikely to recur;
it
was characteristic of the reorganisation of local
government in the nineteenth century. Where it does, and in
countries like India where
it
may still be frequent, apt statutory
provision ought
to
be made in the light
of
the puzzles raised by
such cases as
Haigh
v.
Dendraeth
R.
D.
C.31
Failing such pro-
vision,
it
is difficult to escape the obvious
“
basic non-feasance
”
element in the cases on inherited systems; the defendant in the
Dendraeth
case was a little unlucky in having its position brought
before the courts
so
long after most such examples of inherited
systems had disappeared, and
it
is possible that fifty years earlier
the decision would have been different, since the element of addi-
tion
to
the nuisance by the acts of the authority was small, whereas
in
Jones
v.
Llanwrst
U.
C.3’
(which Vaisey
J.
applied in
Dendraeth)
it was appreciable.
ROADS
The historical development of these doctrines has not, of course,
followed the logical path
so
far traced.
It
has instead been a part
of social development in which practical problems have been solved
as they occurred by reference (in this case often explicit) to policy
considerations supported by a minimum of doctrinal reasoning;
the earliest and still by far the most important case is the liability
of public road authorities for the various kinds of dangerous road
conditions-inherited, caused by the elements, caused by third
parties,
or
caused by the authority
or
its servants and contractors-
which by a law of nature will always find a member of the public
anxious to be injured and eager to resent the injury. The history
of the road cases has been many times summarised.
A.
T.
Denning, as he then was, gave an account in
193033
which is a
masterpiece of cmdensation, but which necessarily suffered from
its brevity; in particular,
it
fails to emphasise the part which con-
siderations of policy have played in the history of the road non-
feasance rule since
1788.
The High Court of Australia re-examined
acquiesced in
a
special order for costs which depended
on
Jsines
L.J.’s
vipw
of
t,he issues; see (1879)
12
Ch.D. at
p.
130.
Similarly the criticism
of
Glossop
by Evershed
M.R.
in the
Pride
of
Derby
Case
[1953]
Ch. at p.
170,
does
less
than historical justice to his predecessors of 1879.
His
Lordship observes that
James
L.J.
may not have fully appreciated
Glossop’s
claim
“
a,s
pleaded,” but
it was not unreasonable of the
Glossop
coiirt to be giiideil less by the
pleadings than by t.he known history of the negotiations between the parties
and the report of
an
official referee.
31
[1945]
2
All
E.R.
661.
Defendant aiithority held linble for niiisance of
32
See n.
30
above.
Jones
was
anot,her example
of
sn authority being held liable.
35
55
L.Q.R.
343.
untreated sewage from an iiiherited system.
546
THE
MODERN LAW REVIEW
VOL.
I8
the history in
1936,34
the Supreme Court of New Zealand in
1942,35
and the High Court of Australia again, at great length, in
1950
36;
in
1951
W.
Friedmann, deploring the survival of the old doctrine,
emphasised the
“
escape clauses
”
available for modern
The position finally established is that road authorities are not
liable to individuals for failure to repair dangerous conditions in
a roadway which are not due to deliberate
or
careless
activity,
“
ma1
”
or
“
mis ”-feasance, of the authority itself
or
its servants
and contractors. This rule has been applied to both local and
central road authorities, and to departments of the Crown as well
as to autonomous statutory ~orporations.~~ The scope of the rule
has been narrowed by one well-established and one disputable
judicial escape mechani~m.~~ The well-established device is to
attribute the dangerous condition to a state of affairs in the road
resulting from the exercise of powers other than the power to build
and maintain the road-for example, power
to
drain the surround-
ing co~ntryside,~~
or
to direct traffic.41 This may involve some
arbitrary attributions of official acts, and difficulties concerning
onus of proof which have not as yet been resolved; in the High
Court of Australia, Latham
C.J.
favoured the view that,
if
attribu-
tion is in doubt, the onus is on the authority to bring itself within
the exception rule by showing that
it
acted wholly under the
“road” power, while Dixon
J.
favoured the view that the onus
was on the plaintiff to show that the activity did
not
fall within
the immune The disputable device is to hold the
authority more fully responsible for
“
artificial
”
structures in a
highway, as distinguished from the
‘‘
highway proper.’’ This
is
a very artificial rule, since once a road has been made up at all it
is wholly, in one sense,
“
artificial,” it is an artifact; but such
a
concept has the advantage of providing a wider escape clause than
the
“
source of authority
”
rule,
if
escape is considered desirable,
since the authority would be liable for drains, culverts, bridges,
34
Buckle
v.
Bayswater Road Board,
57
C.L.R.
259. See the comment by this
35
Gascoyne
v.
Wellington City Corporation
[1942] N.Z.L.R. 562,
and
see the
writer in 12 Aust.L.J. 231.
comments of
a
learned contributor in 26
New Zealand
L.J.
49, 65.
Gorringe
v.
Transport Commission,
80 C.L.R. 357.
37
5
Res
Jiidicatac
21. In similar vein, see a learned article
in
88
Irish
Law
Times
99, 105.
38
Quinn
v.
Minisfcr
of
Commerce
[1954] N.I. 131 (Suprenie Court of Northern
Ireland). In this case, Lord MacDermott
C.J.
also discussefi the position
of
independent contractors to road authorities, and
of
local authorities
to
which
a
central aut,hority has delegated repair functions. Neither can he affected
by the special doctrines applicable to road authorities, since t.hey are not
occupiers nor nnder
aiiy
statutory duty; hence the discussion
of
this problem
in English opinions which Lord MacDermott criticises was quitre misconceived,
and the liability of such defendants
is
governed solely by the ordinary
negligence principle.
39
Friedmann,
op.
cat.,
fiubdivides those mechanisms further.
40
Newsome
v.
Durton
U.
D.
C.
[I9381
3
All
E.R.
93.
41
Skilton
v.
Epsom,
etc.,
U.
D.
C.
[1937]
1
K.B.
112.
42
Rticklc’s
Case,
57
C.L.R. 259.
Nov.
1966
NON-FEASANCE REVISITED
547
etc. constructed wholly
or
mainly for road purposes-or (if Dixon
J.
was right on the onus question) not shown to be otherwise. The
artificial structure rule was clearly stated by the Privy Council
in
1879,43
and acted on by McTiernan
J.
in the High Court of
Australia in
193644
and has been approved in dicta of Australian,
New Zealand and Canadian But the Privy Council’s
decision has in other respects been
so
disrespectfully treated, both
in the Board and in the House of Lords, that
it
may not be a very
satisfactory source for any rule,
or
exception to rule.46 In
Gorringe4‘
the High Court of Australia at least by implication
rejected the
“
artificial structure
”
escape, since
it
was there deal-
ing with the wooden bridging over a’culvert-plainly as much an
“
artificial structure
”
introduced into the roadway as the barrel
drain which caused the trouble in
Bathurst
v.
Macpherson
and the
agricultural drain which McTiernan
J.
was prepared to treat as
an artificial structure in
Buckle’s
case. But the High Court held
that failure to repair the culvert was non-feasance and not action-
able. On the other hand, in
1952
the Supreme Court of British
Columbia applied the
“
artificial structure
”
escape rule when
holding a road authority liable for a collapsed culvert.48 There
seems no good reason why the courts should not apply
both
the
“
source of authority
”
and
the
‘‘
artificial structure
”
escape rules.
But a rational solution of the onus of proof problem in
Buckle,
and
of the artificial structure dispute, requires a preliminary decision
of policy; does the social reason for the road non-feasance rule still
exist
?
In the road cases, the judges have always been particularly
explicit about the policy justifying decision and rule. In
Russell
v.
Men
of
Devon,
which begins the modern history, Lord Kenyon
C.J.
said:
“
If
this experiment had succeeded,
it
would have been
productive of an infinity
of
actions.”
49
In
Young
v.
Davis,
after
the procedural reasons for refusing recovery in highway non-
feasance cases had largely disappeared, Pollock C.B., upholding
the old rule, said:
“
I
think
it
is sometimes desirable to present a
legal decision in a popular form
”;
after that apology, he explained
the non-feasance rule as follows:
“
the traveller was expected to
take care of himself, and
if
the road was a little out of repair, to
proceed with caution and not when he met with an accident to
throw on other persons the blame
of
that which was owing to his
45
Borough
of
Bathurst
v.
Macpherson
(1879)
4
App.Cas. 256.
44
Buclcle’s
Case,
supra.
45
Australian and
N.
Z.
examples are collected
by
this writer
in
12 Au8t.L.J. 231.
46
See 12 Aust.L.J. at p. 233, and
per
Dixon
J.
in
Buckle, supra
at pp.
290
et
47
80 C.L.R.
357.
48
Sowles
v.
Surrey
[19521
1
D.L.R.
648.
A
very large culvert which
also
served
a8
a
passage
for
cattle.
19
(1788)
2
T.R.
667 at p. 673.
For Canada, see
Sowles
v.
Surrey
[1952]
1
D.L.R
648.
seq.
:
another example of historical unfairness.
548
THE
MODERN
LAW
REVIEW
VOL.
18
own want of caution.”
50
This and other cases of the period also
advance the danger that men will not accept office on highway
boards if they are to be exposed to such actions; such objections
might have contributed to the establishing of a general immunity
from tort liability of all public authorities exercising governmental
functions, an immunity actually established in the
U.
S.
A.,
and
finally given the quietus in England only in the
Mersey Docks
case.
In
Saunders
v.
Holborn D. B.,
after the House of Lords had finally
accepted the road non-feasance rule, Charles
J.
when applying it
said that he “need not refer to the serious results which would
attend a contrary construction,” but following a common judicial
practice he went ahead and did
so:
“
it
would be a most extra-
ordinary piece of legislation
if
anyone injured by the failure of a
local authority to cleanse the streets were able to bring an
action.”
51
It
is not unreasonable to suppose that the administra-
tive and financial problems of local authorities, the probability of
numerous claims and the desirability of encouraging a high standard
of self-help among road users were present
to
the minds of most
of the judges
in
the series of cases ending with
Sydney
v.
Bourke
(1895),52
in
which the Privy Council finally adopted the non-
feasance rule for Australia in spite of the quite different history of
road maintenance
in
that country.
Some comparison from jurisdictions in which the non-feasance
rule has not been applied by virtue of the English cases supports
the view that highway liability presents special problems of policy.
In South Africa, as already indicated, the Appellate Division of
the Supreme Court has developed a doctrine closely similar to the
effect of the English rule plus the English
“
artificial structure
”
escape clause; a road authority is liable for misfeasance in the
English sense and also for failure to repair any “new source of
danger
”
which its activities might create, such as a type of surface
particularly likely to break up.5s In
Murray
v.
Bulawayo
Municipality,
Beadle
J.
of the Supreme Court of Southern Rhodesia
explained the rule on policy grounds similar to those of the English
cases; he emphasised the danger of a rule which might discourage
road authorities from undertaking building and repair.54 In
Canada, several provinces have adopted statutory codes which
expressly make road authorities liable to actions for damages for
failure to repair, but the liability is restricted in ways which vary
from province
to
province. The latest consolidation is that of
50
(1862)
7
H.
&
W.
at p.
770.
The decision was affirmed in the Exchequer
51
[1895]
1
Q.B.
at p.
70.
52
[1895] A.C.
433.
53
De
ViZlieis
v.
Johannesbuig
[1926] A.D. 401;
Cape Town
V.
CZohessy
el9221
In the
HaZZi?eZZ
Case
[1912] A.D. at p. 670, Innes C.J. suggested
54
1952
(4)
S.A.L.R.
575
at
p.
583.
Southern Rhodesia has Roman-Dutch
Chamber without reference to the policy,
2
H.
&
C. 197.
A.D.
4.
that the
‘‘
new danger
law and accepts the authority
of
S.A.
Appellate Division decisions.
rule could become part
of
English law.
Nov.
1956
NON-FEASANCE
REVISITED
549
Ontario, a case of particular importance
’.’
:
claims must be brought
within three months of accident, liability for absence
or
presence
of rails and guards is excluded, liability is confined to the state of
the “travelled portion,” liability for presence of snow and ice
is confined to cases of “gross negligence,” notice of action is
required,j” and recovery is confined to
“
particular loss
or
damage
beyond what is suffered in common with all other persons affected
by the want of repair.” These restrictions apply to claims based
on misfeasance as well as non-feasance, and as a result of judicial
decisions tending to place
“
malfeasance
”
claims in a separate
class outside the statute, it is now provided that the restrictions
also apply to actions based on nuisance. In Manitoba, the code
requires that damaged vehicles be produced to the clerk of the
road authority within
48
hours,
or
left
in
situ
for him to see, as a
condition
of
action.” In Quebec, no general immunity for non-
feasance has been deduced from fault liabilit~,~~ as in South Africa,
but the responsibility of municipal authorities is tempered in
accordance with their wealth and manpower
”;
damage to the
springs of a vehicle, and injury from flying stones, are excluded
from recovery by the Roads Act, section
35.“O
In the
U.
S.
A., on
the other hand, the whole question has been much complicated by
the doctrine of tort iqununity for all governmental functions, even
when exercised by autonomous authorities. The modern trend
has been to treat road maintenance as a
“
ministerial
”
or
‘‘
pro-
prietorial
,,
function,
or
to treat road statutes imposing a duty to
repair (especially municipal charters) as creating private rights to
damages, in some jurisdictions with
“
non-feasance
”
exceptions
like the English but in most without.61 Scotland has neither a
general non-feasance doctrine nor statutory equivalents, and cases
have been very few; the rule of nature that every hole in the road
finds its litigious victim appears not to apply in that jurisdiction.62
These comparisons, and in particular the Canadian experience,
suggest that
if
the erosion of the English non-feasance rule along
the lines described and praised by Friedmann goes much further,
some of the road authorities formerly protected by that rule will
have to seek legislative intervention.
Does the road non-feasance rule carry the immunity of
authorities much further than the rules derived from basic non-
feasance require? Somewhat, but having regard to the escape
55
Revised Statutes,
1950;
Municipal Act
(c.
243),
8s.
453, 454.
56
With provision for exemption in special cases.
57
Municipal Act,
1933,
s.
451;
see
Walker
V.
Whitewater
[1938] 3
D.L.R.
284.
58
Civil Code, art.
1054.
59
Cf.
Montreal
v.
LemiZZe
(1952)
R.L.
33
with
Lafond
v.
Longueil
(1952)
60
Revised Statutes,
1941,
c.
141.
61
See
40
Corpus
Jur. sec. (Highways)
250-62; 63
ibid.,
(Municipal Corporations)
62
Rinnell
v.
Glasgow,
1950
S.C.
573.
Que.S.C.
73.
782
and the note
to
Skiris
v.
Port
Washington 109
A.L.R.
599.
550
THE
MODERN
LAW REVIEW
VVL.
18
clauses, not
so
far as the condemnations of the rule, judicial and
other, might lead one to expect.
It
depends to some extent
on
the theoretical basis of liability. In the High Court of Australia,
Sir
Owen Dixon, that great master of the common law and now
Chief Justice, has insisted that road authorities can never be
regarded as quasi-occupiers and liable as such
63
;
their legal respon-
sibility, he says, stems wholly from their position as bearers
of
statutory duties
or
powers, and this is also the prevailing view in
the
U.
S. A.
On
such a view, the authority’s responsibility can
flow only from some personal connection with a public nuisance
in the highway; most of its immunity comes well within the
principle of failure to ameliorate,
or
to ameliorate sufficiently,
under statutes which even
if
expressed in terms of duty are for
the benefit of the general public and not of a limited class. The
immunity goes further than basic non-feasance requires only in
that the authority*escapes responsibility for the decay of road
surface, road drains, curbing, etc., even when the dangers
so
created
are such as would not have occurred but for the authority’s
intervention
64;
bold development of the
“
artificial structure
”
exception would go far to eliminate even this extension
of
basic
immunity. The immunity is made to appear greater by consider-
ing the liability for
“
non-highway
”
structures; they too are
usually present pursuant to the exercise of statutory powers
or
the discharge of statutory duties owed to the public at large, but
careless omission to keep in repair carries liability to individuals,
even though the general position of the public, taking the defective
structure into account, is much
“
ameliorated
”
as compared with
the position before the authority took over. But the extent of
the unusual immunity of road authorities seems wider
if,
contrary
to Dixon C.J.’s view, we consider road authorities as having a
bundle of rights, powers and privileges in relation to a road which
places them in a position analogous to that of
an
occupier.
O’Halloran J.A. of the Supreme Court of British Columbia has
expressed a robust preference
for
this view,6s and indeed
it
is
not
easy to provide a doctrinal justification for the
“
non-highway
”
or
‘‘
artificial structure
”
liabilities
on
any other view. Even when
courts officially endorse the
“
statutory power
”
view, it may be
suspected that they feel some discomfort about the extent of high-
way authority immunity because
it
is more
“
natural
”
to regard
the authorities as occupiers.
63
In
Buckle,
supra,
at
p.
281, and in
Gorringe, supra,
at
p.
369.
64
It
is
at
this point that the immunity in South Africa stops.
65
Mainwaring
v.
Nanaiino
[1951] 4
D.L.R.
519, at
p.
521;
Sowles
v.
Surrey,
supra,
at p. 649. Such
an
attitude seems indisputably correct when, as in
South Australia, the fee simple in roads ie vested
in
an
authority; S.A. Local
Government Act, 1936,
8.
365.
Nov.
1955
NON-FEASANCE
REVISITED
551
DRAINS
66
it
has already been suggested that the foundation English drainage
cases,
Glossop
(1879)
and
Dorking
(1881),
illustrate in the main
the basic non-feasance situation of an inherited nuisance not
removed. In both, the difficulty of private prescription was
prominent; the public at large cannot have such a prescriptive
privilege, nor could the authority as such claim yet to treat
the plaintiff
or
relator as suddenly acquiring a right to the removal
of an old nuisance would have been attributing an unlikely inten-
tion to the Public Health Act,
1875.
The long judgments in these
cases discuss many facets of what was a substantially new problem
of public law. Were the reformed drainage authorities to be
treated, on the model of the
Mersey
Docks
case, as occupiers of the
drains and as such liable for nuisance under the ordinary and
somewhat strict rules? In
Dorking,
Jessel
M.R.
suggested that
the statutory relation was not sufficient to justify such a view,
and this is similar to the Dixonian doctrine on roads. Jessel
M.R.
did not persist with this argument; the cases were decided on an
assumption, never since rebutted, that
"
vesting
"
is sufficient to
make a drainage authority prima facie liable under the general
law, by analogy with the position of occupiers. But the ability
of the authority to control the condition of the drains was clearly
limited in ways not applicable to private occupiers.
It
could not
prevent prescriptive users of existing inadequate systems from
continuing to use them. Section
21
of
the Public Health Act,
1875,
and its successor, section
34
of the Public Health Act,
1936,
gave
individuals a statutory right to make connection with a sewer,
subject to conditions which did not include a consideration of the
adequacy of the system to carry the additional burden.68 The
presence of a statutory power was felt to be in some way incon-
sistent with the existence of strict liability, such as a private
occupier would incur; in one early case
(1874)
69
Brett
J.
said
it
would be
"
contrary to natural justice
"
to make a Vestry strictly
liable for the condition of drains.
It
is impossible to be fair to
the Court of Appeal of that period without treating its decisions
as part of a historical process, the reform of English local govern-
ment and sanitation; looking at the decisions thus, one must admire
the combination of legal and social insight which the judges dis-
played, and their sensible solution of policy difficulties which the
Parliament ought to have anticipated.
In one respect the drainage cases never adopted the non-
feasance rule finally affirmed
for
roads by the House of Lords in
66
Including, herein, sewers, irrigation ditches, etc.
h7
Brown
v.
Dunstable
[1899] 2 Ch.
378.
I,*
Other statutes may give drainage authorities
a
wider discretion, which
may
affect responsibility
for
an overloaded sewer;
e.g.,
Victoria, Melbourne
&
Metropolitan Board
of
Works Act, 1928,
6.
156.
e9
Hnmmond
v.
Vestrg
of
St.
Pancras,
L.R.
9 C.P.
316.
552
THE
MODERN
LAW
REVIEW
VOL.
18
Cowley's
case
(1892).
A
possible analogy with the latter would
have been to hold that drainage authorities are not liable for
careless failure to repair
or
clean a drain which decays
or
becomes
blocked
or
is injured by third parties, but the analogy was never
drawn, and drainage authorities are liable for such omissions.io
But the complex factors present in the
Glossop
and
Dorking
cases
left a heritage after the historical problem of the inherited systems
and their prescriptive users had largely passed away. This was
the problem of the modern system, originally adequate, which
becomes inadequate owing to the growth of population, the building
of houses, the spread of reticulated water and consequent ability to
put in privies, the paving of roads and consequent rainwater run-
off
into drains and sewers instead of absorption.
If
the drainage
authorities are regarded as occupiers owing at least the sort of duty
of care set out by Lord Blackburn in
Geddis
v.
Bann Re~ervoir,~~
there is no reason why they should not be liable for damage result-
ing from careless failure (having regard to their resources) to adapt
their systems to such changes. Perhaps the courts would ulti-
mately have held for liability, if there had not been a case con-
necting the predominantly
"
inherited
"
problem
of
Glossop
with
the predominantly
"
developmental
"
problem of
Hesketh
v.
Birmingham
(1922).72
This was
Robinson
v.
Workington,
decided
by the Court of Appeal in
1897.73
The House of Lords and Privy
Council decisions finally establishing the road non-feasance rule
were now available and much relied on, and though the develop-
mental problem was already prominent, the inheritance problem
and the policy considerations of
Glossop
and
Dorking
were also
still much in the mind of the Court of Appeal, and under all these
influences the decision was in favour of the authority.
A
similar
decision had been given in Ohio in
1884.74
The question did not
squarely come before the Court of Appeal again until
Hesketh
in
1922,
and then appeared wholly as a developmental problem;
Robinson
v.
Workington
was followed.
It
did not come squarely
before an American court again until
1930,
when the Supreme Court
of Washington decided the other
In the
Pride
of
Derby
case
'6
the Court of Appeal was obliged,
reluctantly, to treat the English decisions as establishing for drains
a special non-feasance doctrine,
viz.,
exemption from liability for
inadequacy which has come about through
"
natural growth," and
70
71
72
Baron
v.
Portslade
U.
D.
C.
[1900] 2
Q.B.
588;
Willoughby
v.
Halstead
(1916) 22
C.L.R.
352;
Campisi
v.
Water Commsn., suprn.
(1878) 3
App.Cas.
430,
at pp.
455-6.
Not reported until
[1924]
1
X.B.
261
(C.A.).
73
[1897]
1
Q.B.
619
(C.A.).
74
Springfield
v.
Syracuse,
39
Ohio St.
665.
75
Boyer
v.
Tacoma,
70
A.L.R.
1342;
and see the no;: at p.
1347.
In many
Rtates the doctrine
of
*'
governmental function has complicated the
drainage as well
as
the road liabllity problem. See Corp.Jur.Sec.
28
(Drains)
51.
76
Supra.
Nov.
1955
NON-FEASANCE REVISITED
553
this doctrine likewise has been clearly recognised and applied in
A~stralia,~‘ and its authority has been recognised in Canada,“
though there there are no clear examples of its application. Traces
of a similar rule can be found in at least one South African
decision
.79
The restriction of this immunity has come mainly from its own
terms. As time passes, it is very likely that positive operations of
the authority which it need not have undertaken will play an
increasing part, and
if
overloading occurs, a triable issue of negli-
gence will be presented. The Privy Council provided a leading
example of this approach in
Kannaluik
v.
Hawthorn,80
and
Scrutton
L.J.
certainly nodded when in
Hesketh
he endeavoured
to explain that case away as due to a peculiar Victorian statute.
In the
Pride
of
Derby
case, Denning
L.J.
suggested that modern
English local authorities will rarely be in a position to rely on
Hesketh,
since their own housing activities will be a major element
in the loading
of
drains that is a factor less likely to be present
in other parts of the Commonwealth, and Denning
L.J.’s
con-
fidence about the English position was very shortly proved
unjustified when in
1954
Upjohn
J.
was obliged (after many
doubts) to apply the
Robinson-Hesketh
doctrine.82 In England,
another distinct technique for avoiding the implications of the
Robinson-Hesketh
series has been to give the purity of streams and
the sea a preferred position, by reason of the specific prohibition
of pollution in the Rivers Pollution Prevention and in the
Public Health How far the latter constitutes a separate
and overriding doctrine
it
is difficult to say, because in the cases
where
it
has been prominent there has also been a considerable
element
of
“misfeasance
”
within the terms
of
the exempting
principle.
For
example, in
Jones
v.
Llanwrst
U.
C.85
the authority
had enlarged the sewers which poured untreated effiuent into a
stream; in
Foster
v.
Warblington
U.
D.
C.86
it
had enlarged
sewers and ordered installation of water closets. In the
Pride
of
Derby
case quite a new distinguishing factor was discovered in
the interposition of a treatment plant on the authority’s own land,
whose defective performance caused pollution of a stream. In
this “rough sea of authorityyys7 special problems are very
77
Essendon
v.
McSweetiey
(1914)
17
C.L.R.
524;
Madell
v.
Metrop. Water
In
the latter case, Davidson
J.
(at
pp.
72
Board
(1935) 36
S.R.(N.S.W.)
68.
et
seq.)
attempts
to
fit the
cases
into a code.
58
Johnson
v.
Dundas
[1945]
4
D.L.R.
624
(Outario
H.C.).
79
Johannesburg
v.
Scuth African Realty
Trust
Ldd.
[1927]
A.D.
163.
80
[l906]
A.C.
105.
81
[1953]
Ch.
at
pp.
190
et
seq.
82
Smeaton
v.
Ilford [lY54]
Ch.
450.
83
1876.
a.
3;
1951,
R.
2.
84
1875,
R.
17; 1936,
s.
30.
85
Suura.
*6
[1906]
1
K.B.
648.
87
Per
Upjohn
J.
[1954]
Ch. at
p.
47%.
554
THE
MODERN LAW REVIEW
VOL.
18
numerous. There is the special problem of the plaintiff who suffers
flooding back through a sewer connected with an overloaded.system;
his complaint may be regarded as a demand for better service,ss
though it would be just as reasonable to regard him
as
exposed by
social compulsion to an unusual danger. There is the dispute
as
to whether statutory authorities are subject to the rule in
Rylands
tr.
Fletcher,89
and whether their liability for nuisance, as occupiers
or
under express statutory provision, is confined to nuisance negli-
gently caused, and what is the meaning of
"
negligence
"
in this
connection
.g
O
In these cases, too, explicit reference to policy has been fre-
q~ent.~l The governing consideration expressed in
Glossop
and
in
Robinson
was that drainage authorities should not have their
hands forced by private actions, since they had to exercise a dis-
cretion to use limited means for the benefit of large numbers. This
feature was particularly prominent in the
1870-1900
period, when
modern drainage was being introduced on a large scale and the
competing demands on local authorities were numerous.
If
the courts had been too ready to intervene on behalf of individuals,
their action could have been regarded as an attempt to usurp the
functions of local authorities,
or
to substitute judicial
for
adminis-
trative discretion. Evidently the Derby Council resented the
Pride
of
Derby
litigation in
1952
on
some such ground
92;
that and
other recent cases occurred when war damage and emergency
controls over materials and labour had created new problems of
competing demands for relief from accumulated nuisances.
If
the
Pride
of
Derby
court seemed less sympathetic than the
Glossop
court to the problems of local authorities in its discussion of
principle,
it
showed its understanding of the administrative
problem by deferring the issuing of an injunction; the latter
device is a frequent instrument of judicial adaptation to administra-
tive policy needs, and a retort to the recommendation of the Royal
Commission on Fever Hospitals in
1882
that the power of the
courts to issue injunctions should be curtailed.93 The policy
88
Stretton's Derby Brewery
v.
Derby
[1894]
1
Ch. 431,
aid
per
Everahed
M.R.
[1953] Ch. at p. 177, dealing with
Robinson
v.
Workington.
89
Cf.
Vaisey
J.
in [1945] 2
All
E.R. at p. 664 with Denning
L.J.
in [1953]
Ch.
at
p. 189 and Upjohn
J.
in [1954] Ch. at pp.
465
et
seg.
90
See
per
Upjohn
J.
in [1954] Ch.
at
p. 477. There haR been
a
tendency to
turn the question
of
negligence in such cases into one of law; if the technical
means for avoiding the danger are shown to exist and to be practicable (within
the meaning of Lord Dunedin's dictum in the
Farnworth Case
[1930] A.C.
at
p,.
183), then failure to employ them is presumed to be negligent. This
special sense
of
negligence is discussed by McDonald
J.
of
the Supreme Court
of
Nova Scotia in
J.
R.
Porter
Co.
Ltd.
v.
Bell
[1955]
1
D.L.R.
62,
and
its application is illustrated by
Fullarfon
v.
N.
M.
Electric,
efc.,
Co.
(1916)
21
C.L.R-181 (H.C.
of
Austr.).
91
Glossop
at
p.
109,
Dorkzng
at pp. 606-7,
Robinson
v.
Workiqfon
at p. 62.2.
92
See
per
Eveished
M.R.
[1953] Ch.
at p.
16'2.
93
The recommendation
was
the result of medical iiidigiiation at the closing
of
smallpox hohpitals under the decision in
Metropolitan
Asylfrtns
v.
HdZ
(1881)
fi
A.C.
193.
Although the latter decision is often quoted with respect, its
Nor.
1955
NON-FEASANCE
BEVISITED
555
problems in drainage cases are usually more considerable than with
road problems, since the trouble can frequently be cured only by
the heavy expense of new pipes and plants, whereas to mend the
hole in the road
or
the collapsed culvert is comparatively cheap
and easy. Hence it is not surprising that a special drainage non-
feasance doctrine, however small in extent, has survived
;
the
wonder is that special doctrines in this field have not proved more
numerous. Such as
it
is,
the
Robinson-Hesketh
rule undoubtedly
gives drainage authorities a little more protection than would the
basic non-feasance rules, because the plaintiffs (notwithstanding
dicta to the contrary) are usually complaining about something a
good deal more substantial than
‘‘
inadequate amelioration,” as a
reference to the facts of
Hesketh
v.
Birmingham
and
Smeaton
v.
Zlford
will show.
CONCLUSION
The conception of non-feasance in administrative law arose partly
from logical considerations connected with the analysis of legal
liability, partly from considerations of policy, and partly from the
way in which legal problems came before the courts at particular
historical periods. Between
1875
and
1900
there was a judicial ten-
dency to seek for a common conception of non-feasance applicable
to all types of public statutory authorities, and going beyond the
necessities of a doctrine which merely denied a
“
right
”
of indi-
viduals to advantageous public services. But since
1900
the attempt
to construct a general doctrine has been abandoned and the tendency
has been instead to expand the liability of public authorities. But
a specific dogmatic rule has remained giving a special immunity
to road authorities, and another of narrower scope giving a special
immunity to drainage authorities;
it
is a question of convenience
of language whether the term
“
non-feasance
”
should be retained in
both contexts, but the danger of confusion is sufficiently great to
justify the abandonment of the word in relation to the drainage
immunity and to speak instead of “the rule in
Hesketh
v.
Birmingham
”
or
some such expression.
The policy considerations which originally justified these special
rules of administrative law have not disappeared. Their signifi-
cance, however, varies greatly from place to place in the several
jurisdictions where they apply.
A
defence which makes good sense
when applied for the benefit of a poorly endowed road authority
responsible for a few thousand square miles in the Western
Division of New South Wales, in a suit by a wool-millionaire who
breaks the springs of his Rolls-Royce in a pot-hole, makes less
sense when applied to save an inner-suburban London road
reasoning
is
open to criticism and it
may
be doubted nhether it
has
ever
sctnally
been applied. See the comment
of
Higginbothain
C.J.
of
Victoria
in
McDonald
v.
Cobwg
(1887)
13
V.L.R.
at
p.
282.
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