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This appeal case discusses the actions (or inactions) of public bodies, when operating under the guidance of statute and a prerequisite (albeit narrow) duty of care towards the general public.
After a number of road traffic accidents had occurred in a well-known intersection, the focus of complaint by drivers at the time, centred around a small patch of land on one of the number of corners, which obscured vision and thereby contributed to the now growing number of injurious collisions.
When consideration was taken by the highways agency operating under the local authority to try and remove the affected area, the decision was taken to write to the land owners British Rail, and request that either the State body take steps to remove the blockage, or that permission might be granted for the local authority themselves to carry out the work, at cost to the State under s.79 of the Highways Act 1980.
Under the power of such statute, the local authority were at their own discretion, able remove the land at cost to themselves, in order to circumvent any undue objections, and while acting in the interest of public safety. Unfortunately, while the local authority did write to the corresponding public body, and a meeting was held to examine how best to proceed, the letter was ignored by the recipients, and the sender was later moved to another council department, without explaining to anyone that the matter was under review, and that further action was needed.
When the claim for negligence and breach of statutory duty was initiated by the victim of the accident, damages were awarded, and shared liability placed upon the driver and local authority (in varying degrees), after which an appeal was made by the defendant public body.
During the hearing, judge Lord Hoffman’s view of operational policy translated that:
“The distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not.”
In other words, just because the highways agency and local authority were obligated to provide safe roads and road surfaces to the general public, private land that prevented an unobscured field of view did not render those same bodies liable for a duty of care, even if they had decided to take steps outside of prescribed statute to remove the obstruction at cost to themselves.
This case ties strongly with the constitutional concept of ‘justiciability’, which is to say that because public bodies are created by statute through the democratic process, the court recognises the limitations of their capabilities, and subsequently hesitates to challenge them.
” I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, it if can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”
“[T]he concept of proximity may be seen as an umbrella, covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to permit recovery in tort.”
“[I]t does seem eminently fair and reasonable that the loss should fall on the highway authority and not the hapless road user. And if the existence of duty of care in all cases, in the shape of a duty to act as a reasonable authority, has a salutary effect on tightening administrative procedures and avoiding another needless road tragedy, this must be in the public interest.”
“[T]he question of whether anything should be done about the junction was at all times firmly within the area of the council’s discretion. As they were not under a public law to do the work…”
“In my view the creation of duty of care upon a highway authority, even on grounds of irrationality in failing to exercise a power, would inevitably expose the authority’s budgetary decisions to judicial inquiry.”
“Public law is unable to give effective remedy if a road user is injured as a result of an authority’s breach of it’s public law obligations.”