Stovin v Wise
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE ROCH,LORD JUSTICE NOURSE |
| Judgment Date | 17 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0216-11 |
| Docket Number | QBENF 92/1199/C |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 1994 |
[1994] EWCA Civ J0216-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
(His Honour Judge Crawford QC)
Before: Lord Justice Nourse Lord Justice Kennedy and Lord Justice Roch
QBENF 92/1199/C
MR. T. STOW QC and MR. M. ROBERTS (instructed by Eversheds of Norwich, Norfolk) appeared on behalf of the Appellant
MR. R. NELSON QC, MR. B. NEWMAN and MR. R. HONE (instructed by Mills & Reeve of Norwich, Norfolk) appeared on behalf of the Respondent
At page 588 Brennan J rejected Lord Wilberforce's general assessment of the circumstances in which a duty of care may arise, saying:
"It is preferable, in my view, the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "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".
In Smith v Littlewoods (1987) 1AC 241 youngsters set fire to an empty cinema, and so damaged adjoining property. A claim against the cinema owners failed, Lord Goff observing at page 271 B that "there is no general duty upon a householder that he should act as a watchdog, or that his house should act as a bastion, to protect his neighbour's house."
In Yuen Kun Yeu v AG of Hong Kong (1988) 1AC 175 The Commissioner of Deposit Taking Companies was alleged to have been negligent in registering a company which subsequently went into liquidation, causing loss to the plaintiff, but the Commissioner had to have regard to others as well as potential depositors, to whom he owed no statutory duty. Lord Keith, in that case, considered that it would be strange if a Common Law duty could be superimposed upon the statutory framework.
In Rowling v Takaro Properties Ltd (1988) 1AC 473 The Privy Council found it unnecessary to decide whether the New Zealand Minister of Finance owed a duty of care to the plaintiff, but at 501 B inclined to the opinion that the distinction between the policy and operational areas of decisions "does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks."Lord Keith went on to point out the necessity before concluding that a duty of care should be imposed, of considering all the relevant circumstances, and expressed the fear that a too literal application of the observations of Lord Wilberforce in Anns "may be productive of a failure to have regard to, and to analyse and weigh all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed." That was considered to be a question of "an intensely pragmatic character, well suited for gradual development, but requiring most careful analysis." So, as it seems to me, it is possible to discern a shift away from the general formulation favoured by Lord Wilberforce in Anns towards the Australian approach.
In Hill v Chief Constable of West Yorkshire (1989) 1AC 53 the House of Lords refused to hold that the Police Force was in breach of duty in failing to identify and apprehend an unknown criminal. The duty of care allegedly owed to a subsequent victim did not exist, Similarly in Clough v Bussan (1990) 1 All E.R. 431 and in Ancell v McDermott (1993) 4 All E.R. 355 the police were found not to owe a duty of care to warn highway users of hazards on the roads, but the police it must be emphasized are not the Highway Authority, which has to maintain the roads and may be vested with special power to ameliorate the danger in question.
In Caparo Industries p.l.c. v Dickman (1990) 2AC 605 Lord Bridge at 617 G pointed out that since Annes' was decided the House of Lords and the Privy Council on a number of occasions had "emphasized the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and if so, what is its scope. "A little later he continued:
"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."
Lord Bridge recognised that words such as proximity and fairness have little utility as practical tests, and suggested that the law had "moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes". So he, like Lord Keith in Rowling's case, is indicating a shift away from the wide proposition articulated in Anns towards the position adopted by the Australian High Court in Heyman. But Lord Bridge went on to point to the importance of the kind of damage sustained, saying at page 618 F:
"It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss."
It is of importance to remember that in present case we are dealing with an alleged duty of care to act so as to reduce the risk of causing injury to road users. This is not a case concerned with pure economic loss. Similarly in the Caparo case Lord Oliver said at page 651:
""Proximity" in cases such as this is an expression used not necessarily as indicating literally "closeness" in a physical or metaphorical sense but merely as a convenient label to describe circumstances from which the law will attribute a duty of care. It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract, but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained."
He too favoured the approach adopted by Brennan J in the Australian case. In the light of those observations it seems to me that "proximity" cannot be regarded as an easy way of deciding whether or not liability exists in the present case. The real question is whether the circumstances were such that the law will attribute a duty of care.
(E) Murphy v Brentwood D.C.
In Murphy v Brentwood D.C. (1991) 1AC 398 the trial judge and the Court of Appeal held that in passing foundation plans the Local Authority relied on negligent advice, and was therefore itself negligent. But the House of Lords, departing from Anns, held that the Local Authority in exercising its functions was not under a Common Law duty to safeguard a subsequent purchaser of a house from economic loss. So, in the context of the present case, it is, as it seems to me, important to recognise two things—first, that the decision in Murphy's case is confined to economic loss, more than one of their Lordships indicating that the position might be different if foreseeable personal injury were sustained. Lord Oliver, for example said at page 487:
"The infliction of physical injury to the person or property of another universally requires to be justified. The causing of economic loss does not. If it is to be categorised a wrongful it is necessary to find some factor beyond the mere occurrence...
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