Public or Private? Duty of Care in a Statutory Framework: Stovin v Wise in the House of Lords

Published date01 July 1997
Date01 July 1997
Public or Private? Duty of Care in a Statutory
Framework: Stovin vWise in the House of Lords
Jane Convery*
A perennial problem in negligence actions involving public authorities is the
balance to be struck between the ordinary principles of negligence liability and
public law considerations which are regarded as militating against the imposition
of a duty of care. The issue was comprehensively addressed by the House of Lords
in XvBedfordshire CC,
a decision which in general terms contained little to
encourage litigation against public authorities. If anything, the emphasis on public
law constraints is even more marked in the majority decision of the House (Lord
Hoffmann, Lords Goff and Jauncey concurring) in Stovin vWise.
But the vigorous
dissenting speech of Lord Nicholls (with whom Lord Slynn agreed) indicates that
the problem of balance is not going to go away. Nor is it obvious that it should, if
one agrees with Lord Nicholls’ intuition that ‘the damnified individual was entitled
to expect better from a public body [and] leaving the loss to lie where it falls is not
always an acceptable outcome.’
There are, however, flaws in Lord Nicholls’
analysis of the public law element in the case. At the same time, Lord Hoffmann’s
speech for the majority may not be free of difficulty. The net result is a majority
decision containing a certain rigorous logic but which may restrict still further the
prospects of a successful action in negligence against a public authority, and a
minority decision with which one can sympathise but which may command only
limited support in so far as it fails adequately — even correctly — to address the
public law constraints on the scope of public tortious liability.
The background
Mr Stovin was seriously injured in a road accident when Mrs Wise turned right
across his path out of a blind junction. Visibility at the junction was obscured by a
bank of land, owned by British Rail, where the two roads met. There had been
accidents at the site in the past (although too few to earn it the status of an accident
black-spot) and Norfolk County Council, the local highway authority, had been in
contact with BR with a view to removing the bank. After initial discussions, the
council’s surveyor wrote to BR seeking permission to go on the land to do the
necessary work. BR did not reply to this letter and the council failed to pursue the
matter. The collision between Mr Stovin and Mrs Wise occurred some ten months
The Modern Law Review Limited 1997 (MLR 60:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 559
*Department of Public Law, University of Edinburgh.
1XvBedfordshire County Council [1995] 2 AC 633 (hereafter XvBeds).
2Stovin vWise (Norfolk County Council, third party) [1996] 3 WLR 388 (hereafter Stovin).
3ibid 396.

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