Law Report: Council inspector liable for wrong advice

LAW REPORT

v

23 July 1996

Welton v North Cornwall District Council; Court of Appeal (Lord Justice Rose, Lord Justice Ward, Lord Justice Judge) 17 July 1996

An environmental health officer who, when inspecting a guest-house on behalf of the local authority, forced its owners to incur needless expenditure on works of building and refurbishment by threatening otherwise to close the premises down was under a duty of care to the owners for the breach of which the authority, as his employer, was liable in damages.

The Court of Appeal dismissed an appeal by North Cornwall District Council against the decision of Judge Anthony Thompson QC, sitting in Truro County Court on 26 January 1995, awarding the plaintiffs, Victoria Florence Welton and David John Welton, damages of pounds 39,522 in respect of the negligence of Brian Evans, an environmental health officer employed by the council.

Roderick Denyer QC and Peter Wadsley (Blake Lapthorn, for Stephens & Scown, Truro) for the council; Philip Mott QC and Christopher Kemp (Frank & Caffin, Truro) for the plaintiffs.

Lord Justice Rose said the plaintiffs had been running Archer Farm, Port Isaac, as a guest-house for 15 years when, in October 1990, Mr Evans arrived, unsolicited and unannounced, to conduct the first ever local authority inspection of the premises. The West Country Tourist Board had inspected them several times and had accorded them its highest accolade, three crowns.

Mr Evans had a different view. He set out 13 requirements which were to be met in order to comply with the law, including substantial building works and major alterations to the kitchen (for which there was no need), and threatened to close down the business if these requirements were not met. In consequence, wholly unnecessary expenditure was incurred for which the judge awarded damages.

The plaintiffs' 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.

The defendant's case was, first, that an environmental health officer acting on behalf of a local authority exercised a police or quasi-police function and therefore, as a matter of policy, no action should lie. Second, that it was neither fair nor reasonable to impose a duty of care when an environmental health officer was exercising a statutory responsibility in the interest of public health. Third, that the present case was not within the principle established by Hedley-Byrne & Co Ltd v Heller & Ptrs Ltd [1963] 2 All ER 575, [1964] AC 465. The particulars of negligence amounted to no more than an allegation that Mr Evans, who was not a lawyer, got the law wrong.

In his Lordship's judgment, the authorities relied on in relation to the police and the CPS were not determinative of the present case because there was no true analogy; but in any case it had been recognised that the principle that no duty was owed in such cases did not apply where, in relation to the particular plaintiff, responsibility had been assumed.

In the light of the analysis of the Hedley-Byrne principle by Lord Goff in Henderson v Merrett [1995] 2 AC 145 at 180, and in Spring v Guardian Assurance [1995] 2 AC 296 at 318, the judge's conclusion that the relationship between Mr Evans and Mrs Welton gave rise to a duty of care within the ambit of that principle was unassailable. His unchallenged findings of fact included reliance by the plaintiffs on Mr Evans and knowledge of such reliance on Mr Evans's part. Accordingly there was an assumption of responsibility by Mr Evans and hence a duty of care owed by him.

The remaining question was whether a relationship derived from the exercise of statutory powers and duties was excluded from the ambit of a Hedley- Byrne principle. There were different categories of conduct to which the existence of the defendant's statutory enforcement duties might give rise, but in this case it had involved the imposition by Mr Evans, outwith the legislation, of detailed requirements enforced by threat of closure and close supervision.

In his Lordship's judgment, the existence of the defendant's statutory powers and duties afforded no reason why it should not be liable at common law for conduct by its servant of this type, which was otherwise well within the Hedley-Byrne principle.