Judgment -House of Lords - Barret (A.P.) v. London Borough of Enfield  continued

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     "And at least since the decision in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care."

See also Brennan J. at p. 479.

Therefore the fact that the defendant's relationship with the plaintiff arose from the exercise of a statutory power does not prevent the plaintiff from claiming that the defendant owed him a common law duty of care, unless the defendant is entitled to contend that the claim is barred because it alleges negligence in the exercise of a discretion given by statute.

The consideration of this subject must begin with the judgments of this House in the Dorset Yacht case. The ratio of the decision was that officers of the Home Office acting pursuant to statutory powers were under a duty to take reasonable care to prevent Borstal boys under their control from causing damage to the property of a third person in the vicinity, but the issue whether a claim could be brought for negligence in the exercise of a statutory discretion did not arise for determination. In his judgment at p. 1026B Lord Reid described the facts as follows:

     "The facts which I think we must assume are that this party of trainees were in the lawful custody of the governor of the Portland Borstal institution and were sent by him to Brownsea Island on a training exercise in the custody and under the control of the three officers with instructions to keep them in custody and under control. But in breach of their instructions these officers simply went to bed leaving the trainees to their own devices. If they had obeyed their instructions they could and would have prevented these trainees from escaping."

Lord Reid expressly stated that the issue of negligence in the carrying out of a statutory discretion did not arise in that case, and he said at p. 1031B:

     "The present case does not raise this issue because no discretion was given to these Borstal officers. They were given orders which they negligently failed to carry out."

Lord Diplock made the same point at p. 1069G:

     " . . . the allegations of negligence against the Borstal officers are consistent with their having acted outside any discretion delegated to them and having disregarded their instructions as to the precautions which they should take to prevent members of the working party of trainees from escaping from Brownsea Island."

Therefore, the observations by Lord Reid and Lord Diplock as to the non-justiciability of acts or omissions in the exercise of a statutory discretion, whilst of great weight, do not constitute the ratio of the decision. The observation made by Lord Reid was at p. 1031A:

     "Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that."

Lord Reid then stated, as already set out, that the case did not, in fact, raise this issue. Lord Diplock said at p. 1067F:

     " . . . over the past century the public law concept of ultra vires has replaced the civil law concept of negligence as the test of the legality, and consequently of the actionability, of acts or omissions of government departments or public authorities done in the exercise of a discretion conferred upon them by Parliament as to the means by which they are to achieve a particular public purpose. According to this concept Parliament has entrusted to the department or authority charged with the administration of the statute the exclusive right to determine the particular means within the limits laid down by the statute by which its purpose can best be fulfilled. It is not the function of the court, for which it would be ill-suited, to substitute its own view of the appropriate means for that of the department or authority by granting a remedy by way of a civil action at law to a private citizen adversely affected by the way in which the discretion has been exercised. Its function is confined in the first instance to deciding whether the act or omission complained of fell within the statutory limits imposed upon the department's or authority's discretion. Only if it did not would the court have jurisdiction to determine whether or not the act or omission, not being justified by the statute, constituted an actionable infringement of the plaintiff's rights in civil law."

I further consider that it is necessary to have regard to the context in which these statements by Lord Reid and Lord Diplock were made and to the nature of the statutory discretion which they were considering. The statutory discretion which came under examination in the Dorset Yacht case was the discretion given to the Home Office by statute to run a Borstal regime which permitted inmates to develop their individuality on right lines with a proper sense of personal responsibility whilst conforming to the rules necessary for well-ordered community life. This was clearly a discretion which was to be exercised by the Home Secretary and his officials and where it would not be right for the courts to substitute their views. Lord Reid said at p. 1031D:

     "Governors of these institutions and other responsible authorities have a difficult and delicate task. There was some argument as to whether the present system was fully authorised by the relevant statutes, but I shall assume that it is. This system is based on the belief that it assists the rehabilitation of trainees to give them as much freedom and responsibility as possible. So the responsible authorities must weigh on the one hand the public interest of protecting neighbours and their property from the depredations of escaping trainees and on the other hand the public interest of promoting rehabilitation. Obviously there is much room here for differences of opinion and errors of judgment."

Lord Diplock said at p. 1067D:

     "The conflicting interests of the various categories of persons likely to be affected by an act or omission of the custodian of a Borstal trainee which has as its consequence his release or his escape are thus of different kinds for which in law there is no common basis for comparison. If the reasonable man when directing his mind to the act or omission which has this consequence ought to have in contemplation persons in all the categories directly affected and also the general public interest in the reformation of young offenders, there is no criterion by which a court can assess where the balance lies between the weight to be given to one interest and that to be given to another. The material relevant to the assessment of the reformative effect upon trainees of release under supervision or of any relaxation of control while still under detention is not of a kind which can be satisfactorily elicited by the adversary procedure and rules of evidence adopted in English courts of law or of which judges (and juries) are suited by their training and experience to assess the probative value."

As I read the judgments of Lord Reid and Lord Diplock, their observations that there can be no action for negligence in respect of actions carried out within the ambit of a statutory discretion were made against the background of the facts of that case and in the context of the statutory discretion under consideration, and their opinion that the courts could not intervene was based, in part, on the consideration that the courts were ill-suited in a sphere such a Borstal training to substitute their views for the views of the Home Secretary and his officials.

I consider that subsequent decisions have shown that the underlying principle to be derived from the passages in the judgments of Lord Reid and Lord Diplock in the Dorset Yacht case relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of Ministers or officials. In Anns v. Merton London Borough [1978] 728, 754C Lord Wilberforce stated:

     "Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this 'discretion' meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes also prescribe or at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many 'operational' powers or duties have in them some element of 'discretion.' It can safely be said that the more 'operational' a power or duty may be, the easier it is to superimpose upon it a common law duty of care."

In Rowling v. Takaro Properties Ltd. [1988] A.C. 473 the judgment of the Privy Council delivered by Lord Keith of Kinkel emphasised that the non-justiciability of an allegation of negligence in the exercise of a statutory discretion is based on the need to exclude those cases which are unsuitable for judicial resolution, that the fact that the decision under attack is capable of being described as having been of a policy character does not in itself render the case unsuitable for judicial decision, but that it is necessary to weigh and analyse all the relevant considerations in considering whether it is appropriate that a court should adjudicate on the negligence alleged. Lord Keith, referring to the distinction between policy decisions and operational decisions, said at p. 501B that their Lordships: