Stovin and Another v Norfolk County Council

JurisdictionUK Non-devolved
JudgeLord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Slynn of Hadley,Lord Nicholls of Birkenhead,Lord Hoffmann
Judgment Date24 July 1996
Judgment citation (vLex)[1996] UKHL J0724-3
CourtHouse of Lords
Date24 July 1996
Stovin and Another
Norfolk County Council

[1996] UKHL J0724-3

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Slynn of Hadley

Lord Nicholls of Birkenhead

Lord Hoffmann

House of Lords



Lord Goff of Chieveley

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann and for the reasons he gives I too would allow this appeal.

Lord Jauncey of Tullichettle

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann and for the reasons he gives I too would allow this appeal.

Lord Slynn of Hadley

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would dismiss this appeal.

Lord Nicholls of Birkenhead

My Lords,


This case arises at the interface of public and private law obligations: the liability of a public authority in tort for failure to exercise a statutory power. When may a public authority be liable in damages for an unreasonable failure to act, in breach of its public law obligations?


The public body is a highway authority: Norfolk County Council. Highway authorities have responsibilities for maintaining and improving highways, including powers to remove potential sources of danger. Section 79 of the Highways Act 1980 is such a power. Where a highway authority deems it necessary for the prevention of danger arising from obstruction to the view of road users, the authority has power to serve a notice on the owner of land directing him to alter a fence or wall or bank. The owner may recover the cost from the authority.


Had Norfolk Council exercised this power in 1988 in respect of the fork of land at the junction of Station Road and Cemetery Lane at Wymondham, the road accident in which the plaintiff, Mr. Stovin, was grievously injured would not have happened. Indeed, steps short of actually serving a section 79 notice would have sufficed.


The council knew this was an exceedingly dangerous junction. Visibility was very limited for vehicles turning right out of Cemetery Lane into Station Road, and accidents had occurred in 1976 and 1982. The necessary remedial work was relatively straightforward and could be done quickly, cheaply and effectively. The work would cost less than £1,000, and money was available.


The council decided to act. On 14 January 1988 the council wrote to British Rail, the owner of the land, suggesting that part of the bank should be removed in order to improve visibility. The council would do the work at its own expense. That was eleven months before the accident. A site meeting took place early in February. The representatives of British Rail agreed to seek the necessary internal approval. They did not get in touch again, and the council did not send a reminder. The council official handling the matter was moved to other duties, and the matter was allowed to go to sleep. A third accident happened on 6 March.


On 11 December 1988 as the plaintiff rode along Station Road, he was knocked off his motorcycle by a car turning right out of Cemetery Lane. Judge Crawford Q.C., sitting as a judge of the High Court, held the car driver was 70 per cent. to blame for the accident, and Norfolk Council 30 per cent. The Court of Appeal, comprising Nourse, Kennedy and Roch L.JJ., dismissed the council's appeal: [1994] 1 W.L.R. 1124. On this further appeal to your Lordships' House, the question is whether the council owed the plaintiff any common law duty in respect of its failure to take action. That is the sole question. The council does not seek to disturb the judge's conclusion that if the duty existed, the council was in breach. In other words, the council failed to act as a reasonable authority in the circumstances. The council need not have exercised its power under section 79 to compel British Rail to alter a corner of its land. If the site meeting had been followed up, British Rail would have given consent, and the council itself would have completed the work before the date of the accident.


Liability for omissions


The starting point is that the council did not create the source of danger. This is not a case of a highway authority carrying out road works carelessly and thereby creating a hazard. In the present case the council cannot be liable unless it was under a duty requiring it to act. If the plaintiff is to succeed the council must have owed him a duty to exercise its powers regarding a danger known to it but not created by it.


The distinction between liability for acts and liability for omissions is well known. It is not free from controversy. In some cases the distinction is not clear cut. The categorisation may depend upon how broadly one looks when deciding whether the omission is a "pure" omission or is part of a larger course of activity set in motion by the defendant. Failure to apply the handbrake when parking a vehicle is the classic illustration of the latter. Then the omission is the element which makes the activity negligent. Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 is an instance where the distinction was not so easy to apply.


Despite the difficulties, the distinction is fundamentally sound in this area of the law. The distinction is based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so.


The law has long recognised that liability can arise more readily in the first situation than the second. This is reasonable. In the second situation a person is being compelled to act, and to act for the benefit of another. There must be some special justification for imposing an obligation of this character. Compulsory altruism needs more justification than an obligation not to create dangers to others when acting for one's own purposes.


There is no difficulty over categorisation in the present case. The council did not bring about the dangerous configuration and poor visibility at the road junction. The question is whether it was in breach of a common law duty by carelessly failing to remove this source of danger.


Common law duties to take positive action


Common law obligations to take positive action arise mainly in contract and fiduciary relationships. They may also arise in tort. Familiar instances are parent and child, employer and employee, school and pupil. The established categories are useful because they embrace common types of situation, but these categories are no more closed than any other categories of negligence. Their unifying thread is some circumstance, or combination of circumstances, which makes it fair and reasonable that one person should be required to take reasonable steps for another's protection or benefit.


Perhaps the established category nearest to the present case comprises occupiers of land and their neighbours. An occupier is under a common law duty to take positive action to remove or reduce hazards to his neighbours, even though the hazard is not one the occupier brought about. He must take reasonable steps to this end, for the benefit of his neighbours: see Goldman v. Hargrave [1967] 1 A.C. 645. If an occupier's tree is struck by lightning and catches fire, he must take reasonable steps to prevent the fire spreading. He must act as would a reasonable occupier in his position.


In this situation a combination of features is present: foreseeability of damage or injury if preventive steps are not taken; control by the occupier of a known source of danger; dependence, or vulnerability, of the neighbour; and the prospect of damage or injury out of all proportion to the preventive steps required.


Even this combination is not enough. The classic example of the absence of a legal duty to take positive action is where a grown person stands by while a young child drowns in a shallow pool. Another instance is where a person watches a nearby pedestrian stroll into the path of an oncoming vehicle. In both instances the callous bystander can foresee serious injury if he does nothing. He does not control the source of the danger, but he has control of the means to avert a dreadful accident. The child or pedestrian is dependent on the bystander: the child is unable to save himself, and the pedestrian is unaware of his danger. The prospective injury is out of all proportion to the burden imposed by having to take preventive steps. All that would be called for is the simplest exertion or a warning shout.


Despite this, the recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother's keeper and have legal obligations in that regard. When this additional reason exists, there is said to be sufficient proximity. That is the customary label. In cases involving the use of land, proximity is found in the fact of occupation. The right to occupy can reasonably be regarded as carrying obligations as well as rights.


Omissions and proximity


Norfolk Council was more than a bystander. The council had a statutory power to remove this source of danger, although it was not under a statutory duty to do so. Before 1978 the accepted law was that the council could be under no common law liability for failing to act. A simple failure to exercise a...

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