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Two Statutory Strict Liabilities
Published online by Cambridge University Press: 16 January 2009
Extract
Where injury or damage is caused by a public authority in the exercise of its functions it would be broadly true to say that the tendency of the modern law is to equate the authority with a private person or trading company causing the same loss. Qualifications exist, of course, the most important being those relating to the Crown, to statutory authority for works which would otherwise be a nuisance and the principle that the courts should not interfere with intra vires “policy” decisions, but there are now comparatively few substantive or adjectival rules putting a public authority in a protected position. Indeed, there is now some demand that we should place public authorities in an inferior position by exposing them to a regime of strict liability for the risks they create in pursuit of a supposed benefit for us all. In view of this attitude it is perhaps not surprising that we tend to consider the public authority only as defendant, but a recent Court of Appeal decision reminds us that there are still instances of legislative solicitude for the authority as plaintiff. The background involves a long and still unsettled wrangle over statutory interpretation beginning with the famous case of River Wear Commissioners v. Adamson.
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References
1 Home Office v. Dorset Yacht Co. [1970]Google Scholar A.C. 1004; Anns v. Merton L.B.C. [1978] A.C. 723Google Scholar.
2 In the past, the most notorious of these was the Public Authorities Protection Act 1893, imposing a limitation period of six (later twelve) months: repealed, Law Reform (Limitation of Actions) Act 1954.
3 (1877) 2 App.Cas. 743.
4 [1979] 2 W.L.R. 907.
5 The Act originally referred to the Postmaster-General, but his functions, rights and duties were transferred to the new Post Office corporation by the Post Office Act 1969. The section in question was amended by Sched. 4, para. 4 of the 1969 Act.
6 Which is payable to the Post Office.
7 Cf. Geoffrey Lane L.J.'s comment in the Hampshire case, n. 45, infra.
8 (1877) 2 App.Cas. 743. The 1847 Act, like a number of its contemporaries, was designed to provide a ready-made set of provisions to be incorporated into subsequent Acts authorising works.
9 (1876) 1 Q.B.D. 546.
10 But the speech is not entirely consistent in this respect: see the criticism expressed in The Mostyn, n. 19, infra.
11 The theory that the law should base itself on the availability of insurance is thus not a twentieth century discovery, though his Lordship does not consider whether loss insurance by the dock owners might not be more efficient.
12 Law in the Making, 7th ed., p. 506.
13 (1877) 2 App.Cas. at p. 759. The speech does not deal with the possibility that the vessel might have become a derelict as a result of negligence, but the section would presumably then apply. In any case, there would be liability at common law.
14 Ibid. at p. 754.
15 [1928] A.C. 57. See also The Crystal [1894] A.C. 508 on s. 56 of the same Act, dealing with recovery of expenses incurred in removing wrecks. The House of Lords accepted that liability to pay expenses arose whether or not the wreck was caused by the owner's negligence, but the defendants were held not liable in the circumstances because they had ceased to be owners by abandonment of the wreck. Cf. Dee Conservancy Board v. McConnell [1928] 2 K.B. 159Google Scholar (negligence).
16 The cable belonged to the dock owners. Curiously, the vessel also damaged another cable belonging to the Postmaster-General, thereby giving rise to a claim under s. 8 of the Telegraph Act 1878.
17 [1927] P. 25.
18 (1877) 2 App.Cas. at p. 751. S. 74 originally provided that it did not extend to damage caused when the vessel was under compulsory pilotage, but this exception was removed by s. 15 of the Pilotage Act 1913.
19 [1928] A.C. at p. 95.
20 Lord Blanesburgh, however, suggests that a defence of “act of God” amounts to the same thing. In effect, the Adamson case is taken as authority for a principle which was only clearly stated by one member of the House, Lord O'Hagan.
21 [1928] A.C. at p. 77.
22 [1951] A.C. 112. Followed, “Jessmore” (Owners) v. Manchester Ship Canal Co. [1951] 2 Lloyd's Rep. 512Google Scholar.
23 Note 18, supra.
24 [1919] 1 Ll.L.Rep. 658.
25 [1927] P. at p. 47.
26 Britton v. Great Western Cotton Co. (1872) L.R. 7 Ex. 130.
27 [1940] A.C. 152.
28 One may attempt to draw a distinction between an obligation to produce a result, for non-performance of which there is an action for damages (the form of the factories legislation) and an express obligation to pay damages for certain events (the form of s. 74 of the 1847 Act) but it is submitted that the only way in which one can create a difference from the distinction is to accept that the origin of the action for breach of statutory duty in the implied intention of Parliament is a myth. This may well be true, but it would require a bold court to go this far.
29 (1876) L.R. 1 Q.B.D. at p. 549.
30 [1928] A.C. at p. 64.
31 [1951] A.C. at p. 159.
32 [1971] A.C. at p. 802.
33 Note 24, supra.
34 Perhaps at this level the distinction between ratio and dictum loses most of its significance.
35 [1951] A.C. at p. 151.
36 [1924] 2 K.B. 308. See also Lord Advocate v. Carmichael, 1953Google Scholar S.L.T. (Notes) 12. As a matter of linguistic analysis, an intention to impose strict liability in section 8 is far from obvious. The section has five paragraphs. The use of “not only” in the first suggests perhaps that it was only intended to impose the £20 per day fine, the matter to which the ensuing three paragraphs are directed. The clearest indication of an intention to impose civil liability is perhaps the final paragraph, saving liability under any other Act or at common law.
37 [1923] A.C. 587.
38 He had failed in the county court, succeeded before the Divisional Court and failed again in the Court of Appeal.
39 [1923] A.C. at p. 600.
40 The contrary opinion of Lord Sterndale M.R. in Postmaster-General v. Blackpool and Fleetwood Tramroad Co. [1921] 1 K.B. at p. 118Google Scholar (on a comparable private Act) received unfavourable treatment in the Liverpool case.
41 [1923] A.C. at p. 597. Counsel's suggestion that legislation might follow a decision adverse t o the plaintiff elicited the following reply from Lord Birkenhead; “I have amused myself by speculating as to its probable ambit. Th e first section of such a Bill will, I suppose, provide that when the Postmaster-General by his own negligence occasions damage to a telegraphic line other persons (including perhaps the owners) non-contributory to that negligence and damage shall pay for it… My Lords, I shall watch with interest the Parliamentary progress of such a proposal”: ibid, at p. 598.
42 [1979] 2 All E.R. 813, decided in January 1974. On the facts, Willis J. thought consideration of Liverpool case strictly unnecessary because the plaintiffs had supplied a rough plan of the location of their cables but had disclaimed any guarantee of its accuracy. Such a disclaimer would not seem to be subject to any requirement of reasonableness under s. 2 of the Unfair Contract Terms Act 1977.
43 This is a very extreme example of determining the ratio of a case on its facts rather than its express reasoning. The only shadow of support for the “act” doctrine in the Liverpool case is in the speech of Lord Shaw at [1923] A.C. 600 but there is no suggestion that he was disagreeing with the reasoning of Lord Birkenhead. The fact that a case could have been decided on a narrower basis does not of itself mean that it must be treated as having been so decided.
44 Yet Geoffrey Lane L.J. was prepared to accept that the situation would be different if the council workman was acting under the direction of the Post Office in striking the blow, for he would then be “pro tempore the agent of the Post Office in whatever he did.”
45 Despite the fact that Geoffrey Lane L.J. considered decisions on the 1847 Act to be of doubtful value in the interpretation of the 1878 Act: [1979] 2 W.L.R. at p. 914.
46 See Bullen and Leake, Precedents of Pleading, 3rd ed. (1868), p. 558.
47 See now Supreme Court of Judicature (Consolidation) Act 1925, s. 39.
48 Pearson J. made it an alternative ground for his decision in Ginty v. Belmont Building Supplies Ltd. [1959] 1 All E.R. 414Google Scholar. The major discussion of the plea since the Judicature Act is probably Aktieselskabet Ocean v. B. Harding & Sons Ltd. [1928] 2 K.B. 371Google Scholar where, however, it was held inapplicable.
49 In Ginty's case (note 48, supra) the foundation of the employer's claim would also have been a contract.
50 [1964] A.C. 465.
51 [1979] 2 W.L.R. at p. 915, emphasis added.
52 The fact that this attitude is on the retreat does not allow one to dispense with consideration of the point altogether. Cf. the suggestion made in the Court of Appeal in Baker v. Willoughby [1970] A.C. at pp. 482, 483Google Scholar and rejected in the House of Lords [1970] A.C. at pp. 495–496. See also the discussion of the meaning of “damage” in the Law Reform (Contributory Negligence) Act 1945 in Drinkwater v. Kimber [1951] 2 All E.R. 713Google Scholar (Devlin J.); [1952] 2 Q.B. 281 (C.A.).
53 Aktieselskabet Ocean v. B. Harding & Sons Ltd. [1928] 2 K.B. 371Google Scholar.
54 [1979] 2 W.L.R. at p. 916.
55 Lumsden v. London Trustee Savings Bank [1971] 1 Lloyd's Rep. 114Google Scholar (but see the Torts (Interference With Goods) Act 1977); Murphy v. Culhane [1977] Q.B. 94Google Scholar (interlocutory proceedings). It would be decidedly odd if the 1945 Act were available in a case of concurrent fault but the defence of default of the plaintiff not available as such where the loss was-entirely his fault.
56 The strength of the House's disapproval of the conduct of the Postmaster-General seems to have been a significant factor in leading the Court of Appeal to a narrow interpretation of the Liverpool case: see [1979] 2 W.L.R. at p. 911Google Scholar (“feelings were running high”) and p. 915 (“taking the bull by the horns in extempore speeches”).
57 In fact, as far as remoteness is concerned, the interpretation put upon the 1847 Act by the House of Lords in the Workington case is narrower than the normal rule at common law: the Act covers the expense of repairing the harbour installations but not consequential loss of revenue. Under the 1878 Act there is express provision for a fine of £20 per day (payable to the Post Office) in respect of careless or wilful interruption of service, which presumably excludes civil liability under the section for consequential losses. The liability under the 1847 Act is a liability to “damages” for the purposes of the legislation dealing with ship-owners' limitation of liability: G. & G. Hamilton Ltd. v. British Transport Commission, 1957Google Scholar S.L.T. 198. Aliter in the case of a claim for recovery of expenses under s. 56: The Stonedale No. 1 [1956] A.C. 1Google Scholar (dealing with the comparable s. 32 of the Manchester Ship Canal Act 1936).
58 See, for example, Re Sigsworth [1935] Ch. 89Google Scholar, reading into the grammatically unqualified words of the Administration of Estates Act 1925 the principle (derived from the law of wills) that a murderer cannot take on the intestacy of his victim.
59 The only express statutory exclusion of contributory negligence or non-deliberate default of the plaintiff appears to be in the Nuclear Installations Act 1965.
60 For example, the express enumeration of certain other defences in such a way as to bring into play the maxim expressio unius exclusio alterius. Thus s. 5 of the Animals Act 1971 quite clearly excludes the common law defence of “act of a third party.” It is not thought that the exception for compulsory pilotage originally found in the 1847 Act could bring the maxim into play.
61 See Jolowicz, “Liability for Accidents” [1968] C.L.J. 50Google Scholar.
62 e.g., Rylands v. Fletcher; the Animals Act 1971Google Scholar; Merchant Shipping (Oil Pollution) Act 1971; Control of Pollution Act 1974; and see the Report of the Pearson Commission, 1978, Cmnd. 7054, Vol. 1, para. 1654.
63 No-fault liability insurance is certainly more cost-efficient than negligence liability insurance; but loss insurance is more efficient still.