Council not liable over dangerous junction

LAW REPORT v 31 July 1996

Stovin v Wise, Norfolk County Council (third party); House of Lords (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Hoffmann) 24 July 1996

A highway authority which knew that a road junction was dangerous, but failed to exercise its statutory powers to carry out works intended to alleviate the danger, did not owe a duty of care to road users so as to make it liable to pay damages for injuries suffered in an accident at the junction.

The House of Lords by a majority (Lord Slynn and Lord Nicholls dissenting) allowed an appeal by Norfolk County Council, the third party to an action between Thomas Michael Stovin and Rita Wise, against the decision of the Court of Appeal ([1994] 1 WLR 1124) affirming that of Judge Crawford QC, sitting as a High Court judge on 27 July 1992, that the council was 30 per cent to blame for injuries sustained by Mr Stovin in a road accident for which the other driver, Mrs Wise, was held 70 per cent liable.

The accident happened in December 1988. Mr Stovin, riding a motorcycle along Station Road, Wymondham, was knocked off and grievously injured by a car, driven by Mrs Wise, turning right out of Cemetery Lane. The council knew this to be a dangerous junction. The view was obstructed by a bank of earth and accidents had occurred there on three previous occasions. Eleven months before this accident the council had decided to take action and had asked British Rail, the owners of the land, for permission to remove part of the bank of earth. A site meeting followed but thereafter the matter was allowed to go to sleep.

Mr Stovin's claim against Mrs Wise was settled. Mrs Wise had joined the council as third party, alleging that as the local highway authority it had been negligent and in breach of its statutory duty by failing to take reasonable measures to reduce the danger to road users at the junction.

Timothy Stow QC and Mervyn Roberts (Eversheds, Ipswich) for the council; Robert Nelson QC and Richard Hone (Mills & Reeve, Norwich) for Mrs Wise.

Lord Hoffmann said the argument that the council had a positive duty to take action giving rise to a claim for compensation in tort must depend on the public nature of its powers, duties and funding. The argument was that the very purpose of a public authority like the council was to spend its resources making the roads convenient and safe. For that purpose it had a large battery of powers in the Highways Act 1980.

Whether a statutory duty gave rise to a private cause of action was a question of construction. It required an examination of the statute's policy to decide whether it was intended to confer a right to compensation for breach. Whether it could be relied upon to support the existence of a common law duty of care was not exactly a question of construction because the cause of action did not arise out of the statute itself. But the policy of the statute was nevertheless a crucial factor in the decision. The same was true of omission to perform a statutory duty.

The minimum preconditions for basing a duty of care on the existence of a statutory power, if it could be done at all, were, first, that it would have been irrational not to have exercised the power, so that there was in effect a public law duty to act; and second, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.

Here, the question whether anything should be done about the junction was at all times firmly within the council's discretion. As they were not therefore under a public law duty to do the work, the first condition for the imposition of a duty of care was not satisfied.

But even if it were, the second condition would not be satisfied. There were no grounds on which it could be said that the public law duty should give rise to an obligation to compensate persons who had suffered loss because it was not performed.

Drivers of vehicles must take the highway network as they found it. Everyone knew there were hazardous bends, intersections and junctions. It was primarily the duty of drivers to take due care.

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