Welton v North Cornwall District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,LORD JUSTICE WARD,LORD JUSTICE JUDGE |
| Judgment Date | 17 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0717-4 |
| Docket Number | CCRTF 95/0294/C |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 1996 |
[1996] EWCA Civ J0717-4
Lord Justice Rose
Lord Justice Ward
Lord Justice Judge
CCRTF 95/0294/C
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE THOMPSON QC)
Royal Courts of Justice
Strand
London WC2
MR P WADSLEY (for MR RL DENYER QC) (Instructed by Frank & Caffin, Truro, Cornwall) appeared on behalf of the Appellants/Defendants.
MR C KEMP (for MR P MOTT QC) (Instructed by Stephens & Scown, Cornwall, TR1 2PN) appeared on behalf of the Respondents/Plaintiffs.
( )
Wednesday, 17th July 1996
This is an appeal by the defendant council against a judgment of His Honour Judge Anthony Thompson QC sitting at Truro County Court on 26th January 1995. He awarded the plaintiffs, Mr and Mrs Welton, damages of £39,522 because of the conduct of a Mr Brian Evans who was employed by the defendants as an Environmental Health Officer. The appeal raises interesting questions as to whether, and if so in what circumstances, a duty of care is owed by a local authority in respect of its environmental health officers when they are purporting to exercise statutory powers in relation to food hygiene.
The facts, as found by the judge, are these. In 1975 the plaintiffs bought Archer farm, Port Isaac. After carrying out certain alterations they ran it for the next 15 years as a guest house, during the summer season from Easter to mid-October. Mrs Welton did the cooking. She had help in serving meals and cleaning. By 1990 there were 8 letting bedrooms providing accommodation for a maximum of 15 guests.
On 12th October 1990, when the season's end was near and there were no guests, Mr Evans arrived, unsolicited and unannounced, to conduct the first ever local authority inspection of the premises. The West Country Tourist Board had carried out inspections several times, most recently in late 1990 and they had accorded the premises the highest available accolade—3 Crowns. They had found, in particular, the kitchen to be clean, well-equipped and organised, the slate floor sealed and level and the tile surrounds and formica surfaces undamaged.
Mr Evans had a different view. He was an unsatisfactory witness whose diary and notebook had gone missing and whose evidence, save where it was unchallenged, the judge did not accept. The judge accepted Mrs Welton's account of events, the main thrust of which was that, on 12th October, Mr Evans set out 13 requirements which were to be met in order to comply with the law. These involved substantial building works and major alterations to the kitchen (for which there was no need) and he coupled his requirements with a threat to close down the business if they were not met. In consequence, wholly unnecessary and excessive expenditure was incurred for which the judge awarded damages. He also awarded general damages for disruption of family life, inconvenience and future loss of capital on sale. The amount of damages awarded is the subject of appeal to this court but the parties have agreed that, if the judge was correct in awarding damages at all, the appropriate figure to be substituted for his award is £34,000.
Mr Evans' principal requirements were that the laundry must be divorced from the kitchen, which required the building of an extension; the grouted but uncracked Delabole slate floor, which was in superb condition, must be taken up and replaced by continuous, impervious material to which neither re-pointing nor screeding was an acceptable alternative; the formica surfaces must be replaced, initially, he said, by stainless steel, but later, when Mrs Welton protested that she could not afford this, by new formica; new sinks must be provided for washing up and vegetable preparation, the ceiling beams must be infilled, the wall tiles must be replaced by aluminium or stainless steel cladding, all wooden surfaces must be painted or varnished, new refrigerators bought and labelled and the extractor fan replaced by hood and ducting for the cooker. Mrs Welton made a note of these matters at the time but none of them were reduced into writing by Mr Evans although he commended as a model the kitchen of a nearby, much larger, hotel. He also approved a layout plan prepared by Mrs Welton. The judge found as a fact that 90% of the work was unnecessary in order to comply with the relevant legislation and that the kitchen plan on which Mr Evans insisted was ill-conceived, inappropriate and less efficient than the previous layout.
A local builder, Mr Richards, was charged by Mrs Welton, reasonably as the judge found and time being of the essence, with the task of carrying out the works to the local authority's satisfaction in order to enable the business to be re-opened the following Spring. Mrs Welton undertook the works as a consequence of the pressure exerted upon her by Mr Evans. Mr Evans knew that what he said would be relied on by the plaintiffs without independent enquiry and he visited to inspect and approve at least 4 or 5 times while the works were being carried out.
By April 1991 the works were largely completed and Mrs Welton wrote to the local authority seeking a final inspection in order to permit re-opening. The defendants wrote on 15th July 1991 in the following terms:
"It is this Department's practice to always confirm any legal requirements in writing, and I can therefore only apologise for Mr Evans' failure to do so in this case, particularly in view of your repeated verbal requests for written confirmation.
"You will appreciate that, in addition to pointing out works which are necessary to ensure full compliance in the short-term with statutory requirements, Environmental Health Officers also, during their inspections, often issue advice and make recommendations regarding additional works which, if carried out, will ensure that legal requirements continue to be met in the long-term and which may also facilitate improved food handling practices. In this regard, it is this Department's policy to differentiate in writing between requirements and recommendations so that proprietors of food premises clearly understand the implications. This omission on Mr Evans' part is very regrettable, and he has been made aware that any further errors of this sort well not be tolerated."
There was further correspondence to which it is unnecessary to refer in detail. The judge drew inferences from it which were adverse to Mr Evans' credibility and to the defendants' case which was, in essence, that substantial refurbishment was Mrs Welton's idea, that Mr Evans never threatened or had any reason to threaten closure and that the works were not carried out at his request, advice or insistence. The plaintiffs' pleaded case was that there was a special relationship between Mr Evans and Mrs Welton which gave rise to a duty to take reasonable care in the statements he made as to the extent of the alterations required to comply with the law. It is the existence or otherwise of this duty which is at the heart of this appeal.
The legislative framework can be briefly identified. The Food Act 1984 (the 1984 Act") applied until the end of 1990. From 1st January 1991 the Food Safety Act 1990 ("the 1990 Act") applied. Under both Acts the local authority had power to enforce the legislative provisions in relation to hygiene by prosecution, summarily before the Magistrates with a right of appeal to the Crown Court or on indictment. Such prosecution could lead to the local authority obtaining a Closure Order against the premises. There was also power to obtain an Emergency Closure Order. The 1990 Act introduced a new, additional, mechanism for the service of an improvement notice by the local authority, specifying grounds for believing that the regulations are not being complied with: compliance with such a notice can avoid prosecution.
It is common ground that, under both Acts, the defendants were the local authority with the duty, susceptible to ministerial direction, to enforce the legislation, that Mr Evans was an "authorised officer" for this purpose and that the plaintiffs' carried on a "food business" at the guest house to which the legislation applied. The relevant regulations are the Food Hygiene (General) Regulations 1970. Under both Acts an authorised officer of an enforcement authority has a right of entry to the premises at all reasonable hours to ascertain whether there is or has been a contravention of the Act and generally for the purposes of performing the authority's functions under the Acts.
Section 44 of the 1990 Act, the terms of which are, in all material aspects, identical to those of Section 116 of the 1984 Act is in these terms:
"(1) An officer of a food authority is not personally liable in respect of any act done by him —
(a) in the execution or purported execution of this Act; and,
(b) within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it.
"(2) Nothing in subsection (1) above shall be construed as relieving any food authority from any liability in respect of the acts of their officers.
"(3) Where an action has been brought against an officer of the food authority in respect of an act done by him —
(a) in the execution or purported execution of this Act; but,
(b) outside the scope of his employment, the authority may indemnify him against the whole or a part of any damages which he has been ordered to pay or any costs which he may have incurred if they are satisfied that he honestly believed that the act complained of was within the scope of his...
To continue reading
Request your trial
-
Harris v Evans and Another
...duty of care to the owners of the business enterprises affected by his decisions. He cited in support Welton -v- North Cornwall D.C. [1997] 1 WLR 570, a decision of the Court of Appeal. The case involved advice given by an environmental health officer under the Food Act 1984 and the Food S......
-
Thames Trains Ltd v Health & Safety Executive
...by some enforcing authority acting on advice given by the inspector." 84 It should be noted that there was a different result in Welton v. North Cornwall D.C. [1997] 1.W.L.R.570 with which Sir Richard Scott V.-C found some difficulty (see Harris's case p.1301D). Probably the two Court of A......
-
W and Others v Essex County Council and Another
...of England (No 3) [1996] 3 All ER 558. Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692. Welton v North Cornwall DC [1997] 1 WLR 570, White v Jones[1995] 3 FCR 51, [1995] 2 AC 207, [1995] 1 All ER 691, [1995] 2 WLR 187, HL. Wilkinson v Downton [1897] 2 QB 57, [1895–9] Al......
-
Desmond v The Chief Constable of Nottinghamshire Police
...instance decision concerning immigration officers performing statutory functions in the name of the Secretary of State; and Welton v North Cornwall District Council [1997] 1 WLR 570, a decision of the Court of Appeal concerning requirements by an Environmental Health Officer, which were wel......
-
Negligence in Regulatory Investigations
...right to appeal against a notice would be irrelevant and there might be no other remedy (see Welton v North Cornwall District Council [1997] 1 WLR 570; Dart v Isle of Wight Council NPC 22). However, the fact that statutory regulators are charged with promoting the public interest rather tha......
-
THE LAW WANTS TO BE FORMAL.
...BV v. Dep't for Trans. [2008] EWCH (Conini) 2794 [1|-[12]. (273) See id. at [39]-[56]. (274) SeeWelton v. N. Cornwall Dist. Council [1997] 1 WLR 570 (AC). Compare id., with United States v. Neustadt, 366 U.S. 696, 697-98, 771 (1961) (holding purchaser of real estate could not proceed agains......
-
Watson v British Boxing Board of Control: Negligent Rule‐Making in the Court of Appeal
...its liability in negligence.3025 ibid 1281G–H.26 ibid 1278F–1280B.27 ibid 1280F–1281C.28 Compare Welton vNorth Cornwall District Council [1997] 1 WLR 570 with Harris vEvans [1998] 1WLR 1285.29 n 1 above, 1281C–H.30 ibid 1282B.January 2002] Watson vBritish Boxing Board of ControlßThe Modern ......
-
Negligent Misstatement, Threats andd the Scope of the Hedley Byrne Principle
...LifeHealth Foods Ltd and Another [1998] 2 All ER 577, 581–582, per Lord Steyn. (Lord Steyn’s fourcolleagues approved his speech.)3 [1997] 1 WLR 570. house.4He ‘conduct[ed] the first ever local authority inspection of the [plaintiffs’]premises’ on behalf of his employers, North Cornwall Dist......