Die Lunae, 9° Decembris,
1940
Parliamentary
Archives,
HL/PO/JU/4/3/959
Lord
Chancellor
Lord Atkin
Lord
Thanker-
ton
Lord
Romcr
Lord
Porter
EAST SUFFOLK RIVERS CATCHMENT
BOARD
v,
KENT AND ANOTHER
The Lord Chancellor
MY LORDS,
On 1st December, 1936, there was
an exceptionally high spring
tide on the coast of Suffolk and
this, reinforced by the influence of
a northerly gale, caused the
waters of the River Deben (which is
tidal below Woodbridge) to
rise so high as to wash over and break
through in many places the
ancient walls or banks, made of clay
and stone, which ordinarily
prevent the flooding of the adjoining
marshland. The marshland
inside the walls is at a lower level than
ordinary high tides, and
consequently if a breach is made in the
walls the tidal water
which enters will keep the marsh pastures
flooded until the gap in
the wall has been stopped, and the invading
water has been drained
away. There were no less than 22 breaches
caused by this high tide
in the walls of the River Deben alone,
with the result that very
extensive flooding took place. One of the
most serious floodings
occurred through a breach, estimated to
measure 20 or 30 feet
across, in the wall which guarded the marsh
pastures of a farm
belonging to the Respondent Porter, of which
the Respondent Kent
was the occupier. Some 50 acres of these
pastures became and
continued thus flooded.
The Appellants are the Catchment
Board, constituted under the
Land Drainage Act, 1930, for the main
rivers of East Suffolk, and
the River Deben is one of these. By
section 6 of the Act the Catch-
ment Board exercises the powers
conferred by the Act on Drainage
Boards, so far as concerns the
main rivers, including the banks
thereof, and drainage works in
connection with the main rivers.
These powers, by section 34 (i)
(a), include the power to repair any
existing water course
or drainage work, and the interpretation
section (section 81)
makes it plain that this includes the repair of
such walls or
banks as guarded the Respondents' farm until they
were broken
through. The Statement of Claim contained the
allegation that the
Appellants were under a duty to keep the
Respondents' walls in
efficient condition and, if a breach occurred,
were under a duty
"efficiently and with the utmost expedition"
to repair
any breach. This contention was, however, rejected by
Mr. Justice
Hilbery who tried the case, and in taking this view,
which is
plainly right, the learned judge was following and approv-
ing
previous decisions by Mr. Justice du Parcq (as he then was)
in the
case of Smith v. Cawdle Fen, Ely (Cambridge)
Commis-
sioners, (1938) 4 A.E.Rep. 64, and Mr. Justice Stable
in Gillett v.
Kent Rivers Catchment Board (1938) 4
A.E.Rep. 810 at pp. 813,
814. Before the Court of Appeal, the
Respondents no longer con-
tended that the Land Drainage Act
imposed on the Appellants a
positive duty to intervene and
undertake the repair of any breach,
and the argument there and
before this House has proceeded on
the basis that the Appellants
had statutory power to intervene, but
were not under a duty to do
so which could be enforced by action.
It is to be noted, however,
that under section 12 a Catchment Board
which fails to exercise
its powers may, in certain circumstances, be
directed by the
Minister of Agriculture and Fisheries with respect
to the
performance of its statutory functions.
If, therefore, the Appellant
Board had remained entirely passive,
it is agreed that the
Respondents could not have succeeded in any
action against them
for non-feasance. But the Appellants did not
remain inactive, but
endeavoured to deal with all the breaches that
had taken place in
their area, amounting to about 30 in number,
2 [2]
including the serious breach in
the wall skirting the Respondents'
land. In the other cases on the
River Deben the Appellants seem
to have been successful, but Mr.
Justice Hilbery has found, and,
following the Court of Appeal, I
am prepared to accept the learned
judge's finding on the facts,
that the methods adopted and the staff
employed in trying to
repair the damage to the wall, with which we
are concerned in this
case, were so inefficient that, whereas the gap
could, by the
exercise of reasonable skill, have been closed and the
flooding
arrested in 14 days, this result was not in fact attained till
after
the lapse of 164 days. In the meantime, of course, the marsh
pastures
remained covered by salt water and the Respondents con-
tinued to
suffer the damage which had been initiated by the breach
in the
wall. For the purpose of deciding the difficult and important
issue
of principle which now arises, details as to the
Appellants'
unsuccessful efforts do not matter, but it is
convenient to state that
it was only at the third attempt that the
gap was successfully filled,
and that in the view of the learned
judge, who had a body of expert
evidence before him, the earlier
efforts of the Appellants, which
consisted in attempting to build
straight across the gap instead of
building a semi-circular
bastion out into the saltings and then recon-
structing the wall
behind this protection, had only the remotest
possibility of
success, and caused the delay.
The problem of law which now
arises for solution is by no means
an easy one. Its essential
elements are these, (1) The Appellant
Board were under no
statutory duty to repair the breach, but they
had the power to
enter upon the land for the purpose of endeavour-
ing to effect
such repair and they did so enter. (2) It was the
original breach
in the wall, caused by the act of nature, which pro-
duced the
flooding of the Respondents' land and it was the opera-
tions of
the ride which kept it flooded; the efforts of the Appel-
lants
were directed to abating this damage. (3) If the Appellants
had
not shown such want of skill in trying to repair the wall, and
if
they had been served by an adequate well-trained staff, the gap
in
the wall would have been closed much sooner than it was and
the
flooding would have been more promptly abated.
The question is whether, in the
above circumstances, the Appel-
lants are liable to the
Respondents in damages to such amount as
would represent the net
loss to the Respondents due to the delay in
abating the flood. The
Court of Appeal were divided on this issue.
Lord Justice Slesser
and Lord Justice MacKinnon thought that the
Appellants were liable
as for breach of duty to do their work with
reasonable care and
expedition. Lord Justice du Parcq differed
and held that the
Appellant Board was "not liable for damage
" suffered
through failure to exercise its powers adequately or at
"
all, even though the damage might have been averted or lessened
"
by the exercise of reasonable care and skill."
It is not, of course, disputed
that if the Appellants, in the course
of exercising their
statutory powers, had inflicted fresh injury on
the Respondents
through lack of care or skill, they would be liable
in damages for
the consequences of their negligent act. If, for
example, the
Appellants, by their unskilful proceedings had caused
a further
area of the Respondents' land to be flooded, or had pro-
longed
the period of flooding beyond what it would have been if
they had
never interfered, they would be liable. But (apart from
two minor
matters, which it is agreed do not govern the main issue)
nothing
of this sort happened. The Respondents would have gained
if the
flooding had been stopped sooner; their complaint against
the
Appellants is that they did not act with sufficient skill to stop
it
more promptly; but the Respondents cannot point to any
injury
inflicted upon them by the Appellant Board, unless it be
the Board's
want of success in endeavouring to stop the flooding
at an earlier
date.
[3] 3
In order that the Respondents
should succeed in this action, it
is necessary that they should
establish, not only that the Appellants
were wanting in care and
skill when exercising their statutory
powers, but that they
inflicted injury and loss upon the Respondents
by their
negligence. Lord Parker thus states the proposition in
G.C.R.
v. Hewlitt ([1916] 2 A.C. 511 at p. 519). 'It is
undoubtedly
" a well-settled principle of law that when
statutory powers are
" conferred, they must be exercised with
reasonable care so that if
" those who exercise them could by
reasonable precaution have pre-
" vented an injury which has
been occasioned, and was likely to be
" occasioned, by their
exercise, damage for negligence may be
" recovered." In
the present case the damage done by the flooding
was not due to
the exercise of the Appellants' statutory powers at all.
It was
due to the forces of nature which the Appellants, albeit
unskilfully,
were endeavouring to counteract. Supposing, for
example, that
after the Appellants had made their first unsuccessful
attempt
they had decided to abandon their efforts altogether, the
Respondents
could have had no legal claim against them for with-
drawing, even
though the result might have been to leave the
Respondents' land
indefinitely flooded. This shows, I think, how
different is the
relation between the Catchment Board and indi-
vidual owners or
occupiers like the Respondents, and the relation
between a
contractor employed by the Respondents to mend the
wall. In the
latter case the Respondents would have a remedy in
damages if the
contractor did not exercise reasonable skill and
promptness in
discharging his task and if damage resulted. But in
the former
case the Catchment Board has its responsibilities over
the whole
of its area to consider; it may be that in its judgment it
is
necessary to use its skilled staff in mending other breaches; it
may
be that the outlay involved in making a good job of one par-
ticular
repair is more than its limited finances would permit. Part
IV of
the Land Drainage Act contains financial provisions; without
setting
these out at length, it is sufficient to say that the expenses of
the
Catchment Board are met by the issue of precepts to the
County
Council and, it may be, to certain other local bodies, but
that the
statute puts limits to the amounts thus raised. Lord
Justice du
Parcq, in his dissenting judgment, points out that when
Parliament
has left it to a public authority to decide which of
its powers it shall
exercise, and when and to what extent it shall
exercise them, this
may raise "a question involving the
consideration of matters of
" policy and sometimes the
striking of a just balance between the
" rival claims of
efficiency and thrift."
Reference was made during the
argument, as was natural, to
the well-known words of Lord
Blackburn in Geddis v. Bann
Reservoir Proprietors (3 A.C.
430 at p. 455). "I take it, without
" citing cases, that
it is now thoroughly well established that no
" action will
lie for doing that which the legislature has authorised,
"
if it be done without negligence, although it does occasion
damage
" to anyone; but an action does lie for doing that
which the legisla-
" ture has authorised, if it be done
negligently." Lord Blackburn
would certainly not wish to be
understood as saying that such an
action would lie in the absence
of proof that the defendant's negli-
gence caused damage; indeed,
negligence in such a connection
involves the twofold conception of
want of care on the part of the
defendant and the consequential
infliction of loss upon the plaintiff.
As Lord Reading C.J.
observed in Munday v. London County
Council (1916) 2 K.B.
331 at p. 334, "Negligence alone does not give
" a
cause of action; damage alone does not give a cause of action;
"
the two must co-exist." A third essential factor is the
existence
of the particular duty. As Lord Wright expressed it in
Lochgelly
Iron and Coal Co., v. M'Mullan [1934]
A.C.1 at page 25, "In
4
[4]
" strict legal analysis,
negligence means more than heedless or care-
" less conduct,
whether in omission or commission: it properly con-
" notes
the complex concept of duty, breach, and damage thereby
"
suffered by the person to whom the duty was owing."
Moreover, as Lord Justice
Scrutton has pointed out in Sheppard
v. Glossop
Corporation ([1921] 3.K.B. 132 at pp. 145, 146) Lord
Blackburn's
passage must be read in the context in which it was
pronounced. I
agree with Lord Justice due Parcq that it would be
misapplied if
it were supposed to support the proposition that a
public body,
which owes no duty to render any service, may become
liable at
the suit of an individual, if once it takes it upon itself
to
render some service, for failing to render reasonably adequate
and
efficient service. On the other hand, if the public body by
its
unskilful intervention created new dangers or traps, it would
be
liable for its negligence to those who suffered thereby. Lord
Justice
Scrutton, at page 149 of Sheppard v. Glossop
Corporation, has a
passage which makes the same distinction.
That case was con-
cerned with a local authority upon which
Parliament had conferred
a discretionary power of lighting. "If
they do light," said the
learned Lord Justice, "they
will be liable in damages for negligence
" in lighting;
negligence in allowing gas or electricity to escape;
"
negligence in putting posts in a highway without warning; and
"
negligence in placing traps and dangers in the streets and not
"
lighting them at night. But they are not liable merely because in
"
the exercise of their discretion they do not light, or because
they
" discontinue lighting, dangers which they have not
themselves
" created."
These considerations lead to
the conclusion that the Respondents'
claim is ill-founded. They
have suffered damage by the flooding
of their land during four
months or more. They seek to recover
compensation from the
Appellants for all of this loss except the first
fortnight. But
the Appellants did not cause the loss; it was caused
by the
operations of nature which the Appellants were endeavour-
ing,
not very successfully, to counteract. It is admitted that
the
Respondents would have no claim if the Appellants had
never
intervened at all. In my opinion, the Respondents equally
have
no claim when the Appellants do intervene, save in respect
of such
damage as flows from their intervention and as might have
been
avoided if their intervention had been more skilfully
conducted.
In my opinion, therefore, the
Appeal should be allowed.
Lord
Chancellor
Lord
Atkin
Lord
Thanker-
ton
Lord
Romer
Lord
Porter
[5]
EAST SUFFOLK RIVERS CATCHMENT
BOARD
v.
KENT AND ANOTHER.
Lord Atkin (READ BY LORD
PORTER)
MY LORDS,
Two material points emerged on
the argument of this appeal: —-
Was there a duty owed to the
plaintiffs and, if so, what
was its nature ?
If there was a duty owed to the
plaintiffs to conduct
the work with reasonable despatch, was
there any damage
caused to the plaintiffs by the breach of the
duty ?
On the first point I cannot help
thinking that the argument did
not sufficiently distinguish
between two kinds of duties.
A statutory duty to do or
abstain from doing something.
A common law duty to conduct
yourself with reason-
able care so as not to injure persons
liable to be affected by
your conduct.
The duty imposed by statute is
primarily a duty owed to
the State. Occasionally penalties are
imposed by the statute for
breach; and, speaking generally, in
the absence of special sanctions
imposed by the statute the
breach of duty amounts to a common
law misdemeanour. The duty
is not necessarily a duty owed to a
private citizen. The duty
may, however, be imposed for the pro-
tection of particular
citizens or class of citizens, in which case a
person of the
protected class can sue for injury to him due to the
breach.
The cases as to breach of the Factory or Coal Mines
Act are
instances. As a rule the statutory duty involves the notion
of
taking care not to injure and in such cases actions for breach
of
statutory duty come within the category of
negligence.
(Lochgelly Iron and Coal Co. v. M'Mullan
[1934] AC 1.)
But apart from the existence of
a public duty to the public,
every person whether discharging a
public duty or not is under a
common law obligation to some
persons in some circumstances to
conduct himself with reasonable
care so as not to injure those
persons likely to be affected by
his want of care. This duty exists
whether a person is
exercising a public duty, or merely exercising
a power which he
possesses either under statutory authority or in
pursuance of his
ordinary rights as a citizen. To whom the
obligation is owed
is, as I see it, the principal question in the present
case.
Of the existence of the duty and
the nature of it in the case of
statutory duties or powers there
is abundant authority, most of
which was cited. I do not propose
to discuss the cases, but will
mention the following: Boulton
v. Crowther (1824), 2 B. & C., 703:
Trustees acting
under Turnpike Act authority: " If, in doing the
" act,
they acted arbitrarily, carelessly or oppressively, the law in
"
my opinion has provided a remedy" (per Abbott, C.J., at
page
707): Southampton and Iichen Floating Bridge Company v.
Local
Board of Health of Southampton (1858), 2 E. & B.
801: Demurrer
overruled to the declaration which alleged that the
defendants
" conducted themselves so wrongfully,
improperly and negligently
" and with such want of due and
proper care" as to injure the
plaintiffs; Whitehouse v.
Fettowes (1861), 2 C.B., N.S., 765, another
case of
negligence by trustees under a Turnpike Act: It may be
"
observed that the act I have supposed to be done by the trustees
2
[6]
" is one which must
necessarily produce damage whether done
" carefully or not,
but the qualification put in the case is this, that
" if the
act authorised to be done by the trustees is done so care-
"lessly
or improperly that the careless or improper manner in
" which
it is done either creates or increases the damage, the
"
trustees will be liable " (Williams J., at page 780); Mersey
Docks
and Harbour Board Trustees v. Gibb (1886), 1 E. &
I. App., 93;
Geddis v. Proprietors of Bann Reservoir, 3
A.C., 430: "An action
" does lie for doing that which
the Legislature has authorised if
" done negligently"
(per Lord Blackburn at page 456), with the
prelude that "it
is now thoroughly well established"; Milward v.
Redditch
Local Board (1873), 21 W.R., 429, where it was held that
the
defendants "had no right to make improvements in a way
"
calculated to cause unnecessary injury to the plaintiffs";
Roberts
v. Charing Cross, Euston and Hampstead Railway
(1903), 87 L.T.,
732 (an action to restrain a railway company
from working by
night so as to disturb plaintiff): "To this
principle there is, how-
" ever, one qualification which is
well settled and indeed is admitted
" by the
defendants—namely, that in carrying out works authorised
by
statute you must not act negligently"; Mayor, etc., of
East
Fremantle v. Annois (1902), A.C., 213, where Lord
Macnaghten
accepts Abbott, C.J.'s statement in Boulton v.
Crowther (supra)
quoted above; Howard-Flanders v.
Maldon Corporation (1926),
135 L.T., 6, where Lord
Hanworth, M.R., at page 10, says that the
defendants "must
not act unreasonably, arbitrarily, oppressively
" or wantonly
", and Scrutton, L.J., at page 11, selects a passage
from the
judgment of Lord Collins in Southwark and Vauxhall
Water
Company v. Wandsworth Local Board (1898), 2 Ch., 203:
"
Merely an assertion of the proposition so frequently affirmed that
"
where statutory rights impinge upon what but for the statute
"
would be the rights of other persons, they must be exercised
"
reasonably so as to do as little mischief as possible."
Finally I
would refer to Sheppard v. Glossop Corporation
(1921), 3 K.B. 132,
where the decision was based upon an
acceptance of the pro-
position that an undertaker is liable if
he exercises a power
negligently, but is not liable for refusing
to exercise the power
though it might be reasonable to do so. I
was a party to that
decision, and will not cite any remarks of
Bankes L.J. or myself
but will refer to words taken from Scrutton
L.J. at pp. 145-6: "But
" it is going far beyond Lord
Blackburn's dictum to say that because
" when an option is
given by statute to an authority to do nor not to
" do a
thing and it elects to do the thing and does it negligently it is
"
liable, therefore it is liable if it elects not to do the thing
which
" by the statute it is not bound to do at all."
I treat it therefore as
established that a public authority, whether
doing an act which it
is its duty to do, or doing an act which it is
merely empowered to
do, must in doing the act do it without
negligence, or, as it is
put in some of the cases, must not do it care-
lessly or
improperly. Now quite apart from a duty owed to a
particular
individual, which is the question in this case, I suggest
that it
would be difficult to lay down that a duty upon a public
authority
to act without negligence or not carelessly or improperly
does not
include a duty to act with reasonable diligence, by which
I mean
reasonable despatch. I cannot imagine this House affording
its
support to a proposition so opposed to public interests, when
there
are so many public bodies exercising statutory powers and
employing
public money upon them. I myself have been unable
to think of any
case where a duty to perform a continuous opera-
tion with
reasonable care, i.e. without negligence, does not involve
an
obligation to perform it with reasonable despatch. Of course
what
is reasonable means reasonable in all the circumstances of
the
particular case.
[7] 3
I thus come to the crucial point
in this case: to whom is such a
duty owed, or who can complain of
the failure to use reasonable
despatch? Now it must be conceded
that instances will occur of
the exercise of powers where it might
be difficult for a member
of the public generally to complain of
unreasonable delay. For
instance delay in the work of relaying
the surface of a highway
may not be actionable at the suit of
members of a highway
are put to expense and inconvenience by
having to make a detour.
Even in this case I think something might
be said for a house-
holder or shopkeeper on the route under
repair who is for an
unreasonably long time deprived of access to
his premises for him-
self and his customers. But we have to deal
here with relations
between the plaintiffs and the Board, which I
suggest are much
closer than the general relations of members of
the public to a
public authority. The Board were engaging
themselves in repairing
the plaintiffs' wall with the object of
preventing the further flooding
of the land of the plaintiffs, and
I think also of one other occupier,
and they were operating upon
the plaintiffs' land. Subject to what
I have to say upon the
causation of damage, which I wish for
the present purpose to
assume, they would know that the longer
the work was delayed the
longer would the waters ebb and flow
over the land, with the
possibility of damage therefrom. In my
opinion these relations
give rise to a duty owed to the plaintiffs
to use reasonable care,
including despatch, in doing the work.
Indeed over and over again
the appellant's counsel admitted that
if and so far as their work
was conducted with such unreasonable
delay as to deprive the
plaintiffs of the use of their land owing to
occupation by the
Board's workmen or materials there would be
a good claim for
damage. This admits a duty owed to the plaintiffs
in respect of
despatch, and this controversy is confined to the extent
of the
duty and the injury caused by it. It is in respect of this
use of
the plaintiffs' land that the question as to the power of
the
plaintiffs to do the work themselves becomes at all relevant.
I
feel sure that the reference to this in Slesser L.J.'s judgment
was
misunderstood in the appellant's argument. It is not that
the
Board owed a duty to the plaintiffs because the plaintiffs
could
have done the work themselves. I think that the argument is
that
the Board came upon the plaintiffs' land to do work which
the
plaintiffs could have done themselves, and that that
circumstance
indicates a relationship which imports a duty owed to
the plaintiffs
to do the work with reasonable despatch. I do not
wish to refer
in detail to Donoghue v. Stevenson (1932),
A.C. 562, but I venture
to think that the principles there
accepted by the majority of this
House give guidance on this part
of the case.
I now come to the second part of
the case, viz., whether, if there
existed any duty owed by the
Board to the plaintiffs to conduct the
work with reasonable
despatch, there was any damage caused by
the breach.
I would begin by noting that
there is in pleading no difference
between actions of contract or
tort as to the allegation of the cause
of damage: "per quod",
or, as in Bullen and Leake, "whereby",
is the
conventional averment that damage resulted from an in-
fringement
of a right of the plaintiff whether based on contract or
tort.
This merely illustrates the legal position. "The damage
"
must be such as would flow from the breach of duty in the
"
ordinary and usual course of things. That is the general rule,
"
both in contract and in tort, except that in contract the law does
"
not consider as too remote such damages as were in the con-
"
templation of the parties at the time when the contract was
"
made. Subject to that, only such damages can be recovered as
"
were immediately and naturally caused by the breach "; Cobb
v
Great Western Railway Co. (1893) 62 L.J.Q.B., at p. 337,
cited
by Lord Sumner in Weld-Blundell v. Stephens
(1920), A.C at p 979
11077
A4
4
[8]
The doubt that has arisen in the
present case is as to whether the
particular damage relied on by
the plaintiffs was caused by the
breach. The flood, it is said,
broke down the plaintiffs' wall; the
flow of water over their land
was caused by the flood; the
defendants were engaged in
preventing similar damage from
happening again to the
plaintiffs; and nothing they did or omitted
to do caused the
damage complained of. I venture to think that
this does not
quite meet the plaintiffs' point. I understand them
to say:
"true it is that we cannot complain of the original flood-
'
ing: and we must put up with the damage that resulted from
' the
ebb and flow of the water over our lands for a certain time,
'
viz., the time that would expire before our wall was repaired, once
'
you had begun to repair it, with reasonable despatch—x days.
'
But on the assumption now made you were under a duty to us
' to
use reasonable despatch, and the water ebbed and flowed over
' our
land for a far longer period—x + y days; and we have
'
suffered damage from the presence of water for this x + y period
'
greater than the damage we would have suffered from the x period
'
alone." Now if the plaintiffs can prove this it seems
inevitable
that the extra damage is directly caused by the breach
complained
of. May I introduce a hypothetical case of a
contractual duty,
assuming as I do that the causation of damage is
the same in con-
tract and tort. Assume that a shopkeeper had
his roof injured
in rainy weather so that the rain came in upon
his goods: and
that he contracted with a builder to repair it
with an express term
that work should proceed without unreasonable
delay. If the
builder were guilty of unreasonable delay whereby
the rain beat
upon the shopkeeper's goods for say 14 days instead
of 4, would
not the shopkeeper be able to recover such damages as
he could
show resulted from the excess exposure, showing possibly
that
his goods could stand 4 days' exposure with little damage
but
could not stand the extra 10? I think that this would be a
plain
case: and it would not depend upon an obligation to
complete
the work. The builder might be protected from an
obligation to
complete by subsequent conditions, death, strikes,
war and the like,
but for such damage as would be shown to be due
to delay in the
work while it was being performed I conceive he
would clearly
be liable. Such damage would be caused by the
delay in repair,
notwithstanding that the original cause of
damage, the rain, and
its continuance were in no way caused by the
builder. I am
therefore of opinion that if the plaintiffs could
prove the case
indicated above they should succeed. I appreciate
that there is
very slight evidence at present in support of this
case, and I should
not myself be prepared to accept the Judge's
suggestion, if that is
what he really intended at p. 39 (A) of his
judgment, that each
day after the end of 14 days the flooding
caused fresh damage.
But it would obviously be impossible, in a
case where to avoid
expense the parties had agreed not to try the
question of damages
at the hearing, to dismiss a case for want of
satisfactory proof of
damage. I should be quite content to
direct the Judge to consider
whether any damage at all of this
kind was proved on the hearing
the damages issue, and if he found
substantially none then to
give judgment in the result for the
defendants. I think the costs
in such a case should probably be
reserved. On the questions,
however, argued before us I think
that our decision should be for
the plaintiffs.
Lord
Chancellor
Lord
Atkin
Lord
Thanker-
ton
Lord
Romer
Lord
Porter
[9]
EAST SUFFOLK RIVERS CATCHMENT
BOARD
v
KENT AND ANOTHER.
Lord Thankerton
MY LORDS,
I have had the privilege of
considering the opinions prepared
by your Lordships, and, while I
agree with the majority of your
Lordships that the Appeal should
be allowed, I desire to state in
my own way the principles and
their application to the present
case which have led me to that
conclusion.
It is admitted that the Land
Drainage Act 1930 did not impose
a positive duty to undertake the
repair of breaches in the wails and
banks of the main river on the
Appellants, but conferred on them
power to undertake such repair,
and to enter upon lands belonging
to another for that purpose. It
is clear to me that the Appellants
owed no duty to the Respondents
unless and until they actually
entered on their land and commenced
operations for repair of the
breach. But I am equally clear that,
as soon as they entered
upon the land and commenced operations,
the Appellants owed
a duty to the Respondents to conduct such
operations with such
reasonable care as would avoid causing damage
to the Respondents'
property, and that they would be liable to the
Respondents if the
latter could show (a) absence of such
reasonable care in the conduct
of the operations, and (b) that
they had suffered loss which was
caused by such lack of reasonable
care.
On the question of existence of
a duty, it seems to me to be
impossible to maintain that
Parliament intended to authorise the
Appellants to cause damage to
the Respondents by want of ordinary
care in their operations on
the Respondents' property. But I must
make clear that, in my
opinion, that duty only relates to the opera-
tions which they
actually perform on the Respondents' land. If
the Appellants chose
to abandon the operations when only partially
complete, they would
be, in my opinion, entitled to do so, and
would be under no
liability to the Respondents for such cessation,
except in so far
as the partially completed works might constitute
a danger leading
to damage. This is clearly stated by Scrutton L.J.
in the Glossop
case, (1921) 3 K.B. 132, at 149 foot. This discretion
as to
abandonment of the operations is in marked distinction to
the case
of a positive statutory duty to undertake the repair, and
the
cases of a contractual undertaking to do the work.
The next question is as to the
standard of care which will con-
stitute reasonable care. Your
Lordships have had occasion recently
to point out once more that
the standard necessarily varies accord-
ing to circumstances,
Caswell v. Powell Duffryn Associated
Collieries Ltd.,
(1940) A.C. 152. It does appear to me that there
are special
circumstances in the case of statutory bodies, such as
the
Appellants, which should lead to the application of a somewhat
less
exacting standard than ordinarily prevails. The actions of
the
waters, with whose depredations they are intended to deal,
are
uncertain and incalculable and the provision of staff, plant
and
material adequate to deal with sudden emergencies, let alone
their
somewhat cramped financial resources, present great
difficulty, and,
when you add the importance and the urgency of
remedial
measures, it does seem to me that much may be condoned as
well-
meant error of judgment, which under other circumstances
might
be considered as unjustifiably risky. I feel bound to make
these
observations for future guidance, although in the present
case,
2 [10]
keeping them fully in mind, I am
unable to find that Hilbery J.
was not entitled to hold that the
Appellants committed a breach
of their duty to the Respondents in
adopting a method of repair
which no reasonable man would have
adopted. It was in this
view that I have felt throughout that the
only real question in
this appeal relates to causation, and the
difficulty arises from the
fact that prior to the intervention of
the Appellants a source of
damage had been already created by the
action of the flood waters
and that that source continued to be
available—at least in some
measure—until it was at
long last excluded by the operations of
the Appellants. Now the
point on which admittedly the success
or failure of the Appeal
depends, is whether the failure of the
Appellants to close the
breach sooner by an efficient method can be
held as the causa
causans of the damage which accrued during
these extra days,
to the exclusion of the flood breach as a cause
of the damage. But
it was in fact still the action of the water
rendered possible by
the original breach that caused the damage
during these days, and
failure to stop such action of the water
cannot alter the fact
that it is the water coming through the breach
that causes the
damage. I am accordingly of opinion that the
Respondents have
failed to make a case sufficient to establish the
essential link
between the breach of duty found by the learned
Judge and the main
damage of which they complain, and that the
Appeal should be
allowed.
[11]
Lord
Chancellor
Lord
Atkin
Lord
Thanker-
ton
Lord
Romer
EAST SUFFOLK RIVERS CATCHMENT
BOARD
v.
KENT AND ANOTHER.
Lord Romer
MY LORDS,
The Respondents by their
statement of claim in the action
alleged that after the river had
broken through their wall the
Defendants "as was their duty"
commenced to repair the said
wall, but in breach of their duty
failed to do the same efficiently
and with the utmost expedition
possible, in consequence of which
breach of duty the flooding of
the Respondents' marshland con-
tinued for many months. The
Respondents in other words were
contending that by virtue of the
Land Drainage Act, 1930, the
Appellants had a duty and not merely
a power to repair the wall
in question. At the trial of the
action this contention was rejected
by Hilbery J., and neither in
the Court of Appeal nor before this
House was the decision of the
learned Judge upon this point in
any way challenged. What,
however, the Respondents did contend
was that, though not imposed
upon the Appellants by the Act,
such a duty was nevertheless
imposed upon them by the common
law the moment that they began to
exercise their statutory power
of repairing the wall. It is not
and cannot be said that the duty
arose from any contract between
the parties express or implied.
Nor is it said that it can be
treated as existing by an application
of the law of estoppel. For
there is no evidence that would justify
a finding of the
existence of any such contract or of any such
estoppel. The duty
is said to be imposed by the common law of
England.
My Lords, it has been laid down
time and again that, in
exercising a power that has been
conferred upon it, a statutory
authority is under an obligation
not thereby (i.e., by the exercise
of the power) to inflict upon
others any damage that may be
avoided by reasonable care. But I
know of no authority for the
proposition that in selecting the
time within which, the extent to
which, and the method by which
its statutory power is to be
exercised its owes any duty
whatsoever. There is, indeed, as I will
point out later on, a
decision of the Court of Appeal in England
that is inconsistent
with such a proposition. And yet this is the
proposition that is
involved in the Respondents' contention in the
present case. They
allege, and for myself I think that they have
proved, that the
Appellants, until they eventually embarked upon
the construction
of the V-shaped dam, selected a method of repair-
ing the
Respondents' wall which, in view of the labour and
materials at
their disposal, was one that no reasonable man would
have
adopted. The result was that the sea water continued to
flow
through the breach in the wall and that the Respondents'
marshland
continued to be flooded for a longer time than would
have been
the case had the Appellants acted more reasonably;
and I will
assume that by reason of this the Respondents suffered
material
damage. Now, had the Land Drainage Act, 1930, imposed
upon the
Appellants the duty of repairing the wall instead of
merely
conferring upon them the power of doing so, they could
without
question have been made liable for this damage. For they
would in
that case have been under the obligation of effecting the
repair
with all reasonable skill and diligence, and they would
have
committed a breach of such obligation had there been any
un-
reasonable delay in effecting the repair, whether such delay
was
2 [12]
due to an unreasonable time
being taken in beginning the work
or in the course of carrying it
out or to their having adopted an
unreasonable method of repair.
But the Act imposed upon the
Appellants no duty of repairing the
wall. It merely gave them
the power of doing so. Whether or not
they should exercise that
power was a matter entirely within their
own discretion unless
and until the Minister of Agriculture
intervened under Section 12
of the Act. Had they determined not to
effect the repair at all,
or not to embark upon the work until
(say) the end of the following
March, the Respondents would have
had no cause of action for
the damage entailed upon them by such
decision. Mo one could
successfully have contended that in the
latter case any extra
damage occasioned to the Respondents by
reason of the breach
in the wall remaining open to the sea between
the 1st December
and the end of March was due to the negligent
exercise by the
Appellants of the power conferred upon them by the
Act. Upon
what principle then can the Appellants be made
responsible for
such damage merely by reason of the fact that they
occupied
the intervening time in making a futile attempt to effect
the repair
by a method that any reasonable person ought to have
realised
had no prospect of success ? Supposing moreover that
after having
embarked upon the work of repair on the 2nd December
(as the
Appellants in fact did when Studd, upon the instructions
of Clark,
started a quite ridiculous attempt to fill up the breach
by throwing
into it bags of clay)—Clark had then decided
that in view of the
material and labour at his disposal it would
be better to refrain
from any further attempts at repair for the
moment, upon what
principle could the Appellants have been held
responsible for any
damage caused by the delay ?
My Lords, the Respondents'
answer to these questions that I
have just propounded is, 'The
principle enunciated by Lord
" Blackburn in the case of
Geddis v. Proprietors of Bann Reservoir,
" 3
A.C. at p. 455." It was in these words: "I take it,
without
" citing cases, that it is now thoroughly well
established that no
" action will lie for doing that which
the legislature has authorised,
" if it be done without
negligence, although it does occasion damage
" to anyone; but
an action does lie for doing that which the
" legislature has
authorised, if it be done negligently. And I think
" that if
by a reasonable exercise of the powers, either given by
"
statute to the promoters, or which they have at common law,
"
the damage could be prevented it is within this rule, ' negligence'
"
not to make such reasonable exercise of their powers." It
is
plain, however, on a careful reading of this passage that the
damage
to which Lord Blackburn is referring is the damage which
"it"—
i.e., the exercise of the power—occasions,
and not damage that
would in any case have been occasioned had the
power never
been exercised at all, or only exercised after a delay
that might
appear to be an unreasonable one. It is also to be
observed that
in the case which was then before this House, the
damage of which
Geddis was complaining was damage that he would
not have
sustained had the statutory authority refrained from
exercising its
powers. It was damage inflicted upon him by reason
of the fact
that the authority did exercise its powers. Unless in
reading Lord
Blackburn's words, that circumstance be borne in
mind, and unless
the exact language that he used be closely
scrutinised, his words
are very liable to be misunderstood. It was
because one Sheppard
misunderstood them that he brought an action
against the
Corporation of Glossop and was discomfited.
The case is reported in 1921, 3
K.B., at p. 132, and the facts of
it so far as material were as
follows. The Corporation had the
power of lighting the streets in
their district, but were not under
any obligation to do so. In
exercise of this power they had erected
[13]
3
a gas lamp in a street known as
Dun LMW, but on one Christmas
night the lamp was extinguished by
one of their servants soon
after 9 o'clock in pursuance of a
general order issued by them
from motives of economy. Now upon
that evening the unfortunate
Sheppard had been paying a visit to a
friend's house, and left there
at 11.30 p.m. His way home led
him, or rather should have led
him, along Dun Lane. But when
nearing the lane he found the
place was in complete darkness.
The result was that he missed
the proper entrance to the lane and
wandered on to some adjoining
land. He eventually arrived in the
lane by falling over a retaining
wall at its side, and was
seriously injured. Feeling somewhat
strongly, and not
unnaturally, that any lighting authority which
turned off the
lights on a Christmas night at the early hour of
9 p.m. was acting
in a highly unreasonable manner, he sued the
Corporation for
damages caused by their negligence. The action
was tried before
Greer J. (as he then was) and resulted in judgment
being entered
for Sheppard. The learned Judge found as a fact
that the
accident would not have happened if the lamp had been
lighted.
The Corporation, however, took the case to the Court
of Appeal,
and their appeal was allowed. It is interesting to note
the
contention put before that Court by the learned counsel
appearing
for Sheppard, because it bears a very close resemblance
to the
argument advanced by the Respondents on the appeal now
before Your
Lordships' House. "Assuming," said the learned
counsel,
" that the Appellants are under no duty but are merely
"
empowered to light their district; and that if they had never
"
lighted Dun Lane the Respondent would have had no cause of
"
action; yet having taken it upon them to light this place they
"
were bound to light it adequately." In support of this
contention
he cited the words of Lord Blackburn to which I have
referred
and upon which the decision of Greer J. had apparently
been
founded. The contention in effect was this: that
although a
Statutory Authority may have been given a power to do a
par-
ticular thing without being placed under the obligation to do
it,
yet the moment that it sets about doing the particular thing,
the
Statutory Authority is in precisely the same position as it
would
have been in had the legislature originally imposed upon it
the
duty of doing it. The contention was rejected, and in my
opinion
rightly rejected by the Court of Appeal. Bankes L.J.
said: 'The
" Appellants have merelv exercised the
discretion vested in them
" by the Legislature. They were
under no obligation to place a
" lamp post at this particular
spot; haying placed it there they
" were not bound to keep it
there; and if they kept it there they
" were not bound to
supply it with gas, and are not to be made
" liable for
merely extinguishing the light at any particular hour."
In
making these observations the Lord Justice was not (as was
made
clear in an earlier part of his judgment) contemplating the
case
of a person being injured by running into an unlighted lamp
that
had been placed in the street by the Corporation. The injury
in
that case would have been caused directly by the exercise of
the
power, i.e., it would not have been suffered at all had
the
Corporation refrained from exercising the power. This
distinc-
tion was very clearly pointed out by Scrutton LJ.
Referring to
Local Authorities who have had conferred upon them a
discre-
tionary power of lighting he said: "If they do
light they will be
"liable in damages for negligence in
lighting; negligence in allow-
"ing gas or electricity to
escape; negligence in putting posts in
" a highway without
warning, and negligence in placing traps and
" dangers in the
streets and not lighting them at night. But they
" are not
liable merely because in the exercise of their discretion
"
which they do not light, or because they discontinue lighting,
dangers
" which they have not themselves created."
Atkin L.J, (as he then
was said: "There is no duty to
exercise the power of lighting
" at all. Nor, if the Local
Authority do light, are they obliged to
4
[14]
" light the whole of their
district or any particular part of it. They
" are under no
duty to light all dangerous places, or any dangerous
" place;
and if they do light a dangerous place for part of the
"
night, they are not bound to light it during the whole night.
"
In this particular case the Local Authority did not cause the
"
danger; it was already in existence."
My Lords, I have ventured to
cite these passages at some
length because they seem to lay down a
principle which in 'my
opinion is a thoroughly sound one. It is
this: Where a Statutory
Authority is entrusted with a mere power
it cannot be made liable
for any damage sustained by a member of
the public by reason
of a failure to exercise that power. If in
the exercise of their dis-
cretion they embark upon an execution
of the power, the only duty
they owe to any member of the public
is not thereby to add to
the damages that he would have suffered
had they done nothing.
So long as they exercise their discretion
honestly, it is for them
to determine the method by which and the
tune within which and
the time during which the power shall be
exercised; and they can-
not be made liable, except to the extent
that I have just mentioned,
for any damage that would have been
avoided had they exercised
their discretion in a more reasonable
way.
In the present case the
Appellants in the exercise of their dis-
cretion selected, and for
some time persisted in, a method of re-
pairing the breach in the
Respondents' wall that no reasonable per-
son would have adopted.
I am willing to assume that the result
of this was that the
Respondents were damaged by reason that
the sea water entered and
remained upon their marsh land for a
longer period than it would
have done had the Appellants
adopted the best method of effecting
the repair. No one, how-
ever, can question, or has attempted to
question, the Appellants'
honesty, and in my opinion they cannot
be made responsible for
that damage. This was the view of the
matter that commended
itself to du Parcq L.J., and I respectfully
agree with him. I
would like in particular to express my
concurrence in the follow-
ing passage in his judgment: 'The law
would perhaps be more
" satisfactory, or at any rate
seem more satisfactory in some hard
" cases, if a body which
chose to exercise its powers were regarded
" as being in
exactly the same position as one upon which an Act
" of
Parliament imposed a duty. On the other hand, it must be
"
remembered that when Parliament has left it to a public autho-
"
rity to decide which of its powers it shall exercise, and when
"
and to what extent it shall exercise them, there would be some
"
inconvenience in submitting to the subsequent decision of a jury,
''
or judge of fact, the question whether the authority had acted
"
reasonably, a question involving the consideration of matters of
"
policy and sometimes the striking of a just balance
between the
" rival claims of efficiency and thrift."
My Lords, for these reasons I
would allow the Appeal.
Lord
Chancellor
Lord Atkin
Lord
Thanker-
ton
Lord
Somer
Lord
Porter
[15]
EAST SUFFOLK RIVERS CATCHMENT
BOARD
v.
KENT AND
ANOTHER
Lord Porter
MY LORDS,
In this case I have had the
advantage of reading the opinion
delivered by my noble and learned
friend Lord Romer, and if we
were not differing from the views of
the Court of Appeal I should
be content to agree with the opinion
he has expressed. Inasmuch,
however, as I think that the Appeal
should be allowed, I consider it
desirable that I should state
very shortly why I have arrived at
that conclusion.
It is common ground that an Act
of Parliament may either
impose a duty upon a public or other body
or may grant them
powers to do an act without creating any
obligation upon them
to undertake the task. It is conceded that
whereas in the former
case a body upon whom a duty is imposed must
fulfil it with due
care and expedition, in the latter case there
is no obligation upon
the body to do anything at all. If they
choose for any reason
which commends itself to them to leave the
task unperformed no
remedy can be obtained nor can any action be
taken against them
unless a right to do so is given by the Act
which grants the power, or
by some other Act.
In the present case the Land
Drainage Act, 1930, by the com-
bined effect of sections 6 and 34
gave power to a Catchment Board
to maintain existing works, that
is to say to drain, repair or other-
wise maintain in a due state
of efficiency any existing watercourse
or drainage work, but
imposed no duty to do so. If the Appellants
had taken no action
when the Respondents' bank was broken and
their land was flooded,
no complaint could have been made nor
indeed could any steps have
been taken though the Appellants
had delayed before taking action,
however long the delay might
have been. All this is admitted on
behalf of the Respondents, but
it is contended that once the
Appellants chose to intermeddle by
undertaking the work they then
were in the same position as if
a duty had originally been imposed
upon them. A power exercised
is said to be the same as a duty
imposed. In the present case the
Appellants did undertake the task
of repairing the breach and I
see no reason for differing from the
finding of the learned Judge
and of the Court of Appeal that in
carrying out the work they
acted negligently and slothfully. If
then their acceptance of the
task imposed a liability to carry it
put with care and circumspection,
I should hold them liable for
failure to perform what they had
undertaken.
Once they had taken action it
was, I think, clear that they were
under some obligation to the
owner of the land upon which their
operations were being carried
out. The question is not as to its
existence but as to its extent.
The Appellants acknowledged
their liability for any damage
directly due to the action which
they took. Under a proper
plea, they said, an increase in the
amount of soil scoured out by
the ebbing and flowing of the flood
or damage caused by sacks
and soil spread over the Respondents'
land due to the Appellants'
activities would form a proper head of
damage, but no such claim
was made; the only loss complained of
was that owing to the
negligent delay in repairing the breach, the
Respondents' land was
flooded for a longer period than it should
have been.
2
[16]
Damage caused by anything
negligently done by the Appellants
in the course of the exercise
of their power which would not have
occurred if they had refrained
from exercising it at all would
undoubtedly have to be made good
on the principles set out in the
well-known words of Lord
Blackburn in Geddis v. Proprietors of
Bann Reservoir
(1878) 3 A.C. 430 at p. 455, already quoted by Lord
Romer; but
where, as here, the damage was not caused by any;
positive act on
the part of the Appellants but was caused and
would have occurred
to the like extent if they had taken no steps
at all, I cannot see
that the loss which the Respondents suffered
was due to any breach
of a duty owned by the Appellants. Their
duty was to avoid causing
damage, not either to prevent future
damage due to causes for
which they were not responsible or to
shorten its incidence. The
loss which the Respondents suffered was
due to the original
breach, and the Appellants' failure to close it?
merely allowed
the damage to continue during the time which they
took in mending
the broken bank. For that I do not think them
liable nor can I
find any case the decision in which would lead
to that result.
The principle expressed by Lord
Blackburn does not depend
upon his statement alone, it is to be
found in cases decided before
his time and has been repeated many
times since. Indeed in the
other case referred to by my noble and
learned friend, Sheppard
v. Glossop Corporation (1921)
3 K.B. 132, Scrutton L.J. says at
p. 145: —
" But it is going far
beyond Lord Blackburn's dictum to
" say that because, when an
option is given by statute to an
" authority to do or not to
do a thing and it elects to do the
" thing and does it
negligently, it is liable, therefore it is liable
" if it
elects not to do the thing which by the statute it is not
"
bound to do at all."
" Because an authority
elects to do a thing and does it
" negligently it is liable,"
says Scrutton L.J. " An action does lie
" for doing that
which the Legislature has authorised if it be done
"
negligently," says Lord Blackburn.
But in each case the words must
be read with reference to the
matter which was being decided and
the sense in which they were
used is illustrated by the passage
immediately preceding that which
I have quoted from Scrutton L.J.:
—
" Lord Blackburn's words
are addressed to negligence in
" the direct operation of the
powers conferred and undertaken;
" for instance if the
Appellants chose to light by electricity and
" laid defective
wires near to the main gaspipes in their district
" and so
caused an explosion, that would be a negligent exercise
" of
their powers; or if they placed a refuge in a crowded street
"
and omitted to light it properly, that might be doing
"
negligently that which the Legislature authorised."
It is damage caused by
negligently doing the act authorised,
not damage which is not
prevented because the act has not been
done or has not been done
efficiently or in time which is under
consideration. If those who
are authorised but not enjoined to act
could be successfully sued
for a failure to exercise their power I
should have thought it
unlikely that they would undertake the
permitted task, since to do
so would be to invite an action at the
suit of any person who
considered that they had not acted with
due vigour and care.
The result
might well be that in circumstances like those under
consideration
action would not be taken where immediate action
was necessary. A
local authority faced by such a series of disasters
as occurred in
the present case might consider that the flooded land
was not very
valuable, but that they were justified in making an
[17]
3
attempt to clear it of water
provided the expense was not serious
and think that the
expenditure of some small sum would not be
too great in an attempt
to prevent the damage. In such a case,
with their eyes fully open
to the possibility of failure, they might
think they were entitled
to take a chance or remedying the position
with that limited
expenditure but would not feel justified in doing
the work in some
way which would ensure its success but at a
great cost. If the
Respondents be right such a decision could never
be made safely
since the local authority by acting would expose
themselves to the
risk of an action for damages at the suit of a
third party
claiming that having undertaken the task the body to
whom power
had been given must continue with the work until
it reached a
successful conclusion though the expense would far
exceed the
value of the land they would thus have saved.
If to undertake the work were to
accept the responsibility for
completing it with due care and with
reasonable dispatch, no
prudent authority could safely act at all
.except in a case where
certainty of success at a limited cost
could be guaranteed. I do
not say that these were the
considerations which influenced the
Appellants in the present
case, but the example given does, I think,
illustrate the danger
of acceding to the argument put forward on
behalf of the
Respondents.
I should add that under the Act
in question, if the local body
fail to take action in a case where
it is thought that they properly
ought to do so, there is power
for the person aggrieved, under
section 2 of the Act, to apply to
the Secretary of State for an order
that they carry out such work
as he instructs them to do.
I also desire to make it clear
that in what I have said I am not
dealing with a case in which it
was contended that the authority
were stopped from alleging that
they were under no obligation to
do the work efficiently and with
reasonable dispatch. No evidence
was given nor was there any plea
that the Appellants by their;
action had caused either of the
Respondents to change his position
in reliance upon anything which
they had said or done. Such a
case must wait for decision until
facts are alleged and proved such
as would create an estoppel.
The sole question in the present
case is whether the mere
undertaking of a task which the
Legislature has empowered an
authority to do puts them in the same
position as if that task had
been imposed as a duty upon them. I
agree that it does not and
would allow the Appeal.
(11077) Wt 8094 - 28 20
3/41 D.L, G. 338
