Tate & Lyle Food and Distribution Ltd v Greater London Council
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Templeman,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 24 March 1983 |
| Judgment citation (vLex) | [1983] UKHL J0324-2 |
| Date | 24 March 1983 |
| Court | House of Lords |
[1983] UKHL J0324-2
Lord Diplock
Lord Keith of Kinkel
Lord Roskill
Lord Bridge of Harwich
Lord Templeman
House of Lords
My Lords,
As I have the misfortune to differ in part from the majority of the Appellate Committee I will ask my noble and learned friend, Lord Templeman, to deliver the first speech with which I understand the rest of your Lordships concur.
My Lords,
Between 1964 and 1966 the first respondent the Greater London Council (then and hereinafter called "the LCC") in exercise of powers conferred on the LCC by the London County Council (Improvements) Act 1962 and with the approval, required by that Act, of the second respondents, the Port of London Authority ("the PLA"), constructed two new terminals for the Woolwich Ferry in the River Thames.
The new ferry terminals consisted of piers which jutted out of the north and south banks of the Thames. The terminals were designed to enable ferry boats carrying vehicles across the Thames to be end loaded. To achieve this object each pier assumed the shape of a letter "J" jutting out first at right angles to the bank and finishing parallel to the bank. There were, however, alternative types of design for the piers and the design chosen by the LCC caused an unforeseen and, as the trial judge Forbes J. found, a largely unnecessary obstruction to the flow of the water in the river. This obstacle combined with the configuration of the Thames in the area of Woolwich reduced the speed of the river flow between the north bank of the river and the main shipping channel up-stream of the terminals; that reduction of speed in turn caused sediment to be deposited and siltation to take place which materially reduced the depth of water between the north bank and the main shipping channel.
The first appellants, Tate & Lyle Industries Ltd. ("Tate & Lyle") have for many years operated a sugar refinery on the north bank of the Thames in Woolwich Reach up-stream of the Woolwich ferry. In 1922 the PLA authorised Tate & Lyle to construct a jetty known as the refined sugar jetty in the bed of the river adjacent to Tate & Lyle's refinery. The depth of the water between the main shipping channel in the Thames and the site of the refined sugar jetty enable small vessels to come alongside the jetty and to load refined sugar for export.
The raw sugar required at Tate & Lyle's refinery was discharged from larger vessels lower down the river into barges which were then unloaded at wharves on the banks of Tate & Lyle's land. About 1964 Tate & Lyle conceived the idea of bringing the vessels with raw sugar up the main shipping channel and thence by a dredged channel to a new jetty to be constructed in the river bed adjacent to the bank of Tate & Lyle's land. To accommodate the required vessels at the new jetty it was necessary to dredge a berth six feet below main channel depth. By the Port of London (Consolidation) Act 1920 Tate & Lyle required a licence from the PLA for the construction of the raw sugar jetty and for the dredging of the channel and berth. On 22nd January 1965 the PLA authorised Tate & Lyle to carry out the necessary dredging of the channel and berth and on the 30th April 1965 the PLA authorised the construction of the raw sugar jetty.
The terminals for the Woolwich ferry were completed for the LCC and the raw sugar jetty was completed for Tate & Lyle in 1966. At the trial of this action Forbes J. held, and it is not now disputed, that the effect of the terminals was to cause siltation of the channels and berth dredged for the purposes of the raw sugar jetty and to cause siltation of the bed of the river between the refined sugar jetty and the main channel. In the result, vessels carrying raw sugar could not approach and be unloaded at the raw sugar jetty and vessels which had formerly loaded and departed with refined sugar from the refined sugar jetty could no longer do so. To enable both jetties to be operated Tate & Lyle with the consent of the PLA incurred additional dredging costs between 1967 and 1974 of £344,998 to enable the raw sugar jetty to be kept in operation and £195,002 to enable the refined sugar jetty to be kept in operation making total additional dredging costs of £540,000. Additional dredging ceased to be necessary after 1974 because the PLA made major alterations to the shipping channel of the River Thames which had the effect of putting an end to the siltation caused by the new terminals in the river bed between Tate & Lyle's jetties and the main shipping channel.
The learned judge also held, and it is not now disputed, that the civil engineers who designed the terminals on behalf of the LCC should have realised that the terminals might cause substantial siltation and should have taken expert advice which would have resulted in a different design for the piers. This would have reduced the siltation caused by the terminals and only involved Tate & Lyle in 25% of the additional dredging costs which they incurred.
In these proceedings Tate & Lyle claim £540,000 representing the total of the additional costs of dredging made necessary as a result of the construction of the Woolwich ferry terminals. Tate & Lyle claim against the LCC for causing the siltation and against the PLA for approving the plans for the terminals which were responsible for the siltation. The facts were exhaustively investigated at the trial; they were admirably elucidated by Forbes J. in his judgment at first instance, when he found substantially in favour of Tate & Lyle; the facts were subsequently summarised in the judgment of Oliver L.J. in the Court of Appeal where the LCC and the PLA succeeded in obtaining a dismissal of all the claims put forward by Tate & Lyle. The question is whether upon the established facts and upon the true construction and effect of the London County Council (Improvements) Act 1962, the Port of London (Consolidation) Act 1920 and the Port of London Act 1968, the LCC and the PLA or either of them are liable to Tate & Lyle in negligence or nuisance for the whole or part of the cost of the additional dredging made necessary by the effect of the Woolwich terminals on the flow of the River Thames in front of Tate & Lyle's land.
The claim of Tate & Lyle in negligence was first put with engaging simplicity on the grounds that the LCC and the PLA owed a duty to take reasonable care not to cause loss or damage to Tate & Lyle of a kind which the LCC and the PLA could reasonably foresee. It was reasonably foreseeable that in order to carry on their business, Tate & Lyle would be obliged to incur the additional cost of dredging if the terminals were not designed to cause the minimum amount of siltation in the river bed and foreshore in the neighbourhood of Tate & Lyle's jetties.
The argument derives from the well known passage in the speech of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at p.580, namely that "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour", that is to say, "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Donoghue v. Stevenson was a case where it was assumed that injury to health had been suffered by a consumer as a result of a defect in a product supplied by a manufacturer.
In Dorset Yacht Co. v. Home Office [1970] A.C. 1004 the Home Office was held liable in negligence for damage to the plaintiff's property caused by absconding Borstal boys. Lord Reid at p.1026 said:
"… there has been a steady trend towards regarding the law of negligence as depending on principle … and the well-known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter; for one thing, it is often caused by deliberate action. Competition involves traders being entitled to damage their rivals' interests by promoting their own, and there is a long chapter of the law determining in what circumstances owners of land can and in what circumstances they may not use their proprietary rights so as to injure their neighbours. But where negligence is involved the tendency has been to apply principles analogous to those stated by Lord Atkin."
In Anns v. Merton London Borough [1978] A.C. 728 a local authority which failed to exercise reasonable care in carrying out its statutory powers and duties in the inspection and approval of the foundations of a house was held to be liable in negligence to a subsequent purchaser of the house when the house suffered damage as a result of defective foundations. My noble and learned friend Lord Wilberforce at p.751 said that:
"The position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on...
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