¹ [1978]A.C. 728.

² “Negligence in the Realms of Public Law— Positive Obligation to Rescue?” [1984] PL. 277.

³ (1978) 94 L.Q.R. 428, 442–447.

⁴ Dalehite v. United Stales (1953) 346 U.S. 15.

⁵ [1970] A.C. 1004, 1066ff.

⁶ (1878) 3 App. Cas. 430, 455–456.

⁷ [1970] A.C. at p. 1030.

⁸ Ibid., at p. 1066.

⁹ It is important to remember that the Geddis case involved the infliction of loss, rather than a mere failure to confer a benefit. The defendants, acting under statutory powers, erected a reservoir. The purpose was to augment the supply of water to the River Bann, and this involved sending a greater quantity of water down the River Muddock. between the reservoir and the Bann. The proprietors neglected to exercise their statutory power to cleanse the channel of the Muddock, with the result that water overflowed its banks and damaged neighbouring land, including the plaintiffs oat crops. This was, accordingly, an omission in the context of a wider course of deficient positive conduct.

¹⁰ At pp. 1066–1067.

¹¹ Hedley Byrne & Co. Ltd. v. Heller & Partners [1964] A.C. 465; Ross v. Counters [1980] Ch. 297; Junior Books Ltd. v. Veitchi Ltd. [1983] 1 A.C. 520; McLoughlin v. O'Brian [1983] 1 A.C. 410; Anns v. Merton London Borough Council [1978] A.C. 728; British Railways Board v. Herrington [1972] A.C. 877 (but see now the Occupiers' Liability Act 1984).

¹² [1970] A.C. 1004, at pp. 1067–1068.

¹³ Daborn v. Bath Tramways [1946] 2 All E.R. 333, 336 (Asquith L.J.).

¹⁴ Bolton v. Stone [1951] A.C. 850 and Miller v. Jackson [1977] Q.B. 966.

¹⁵ Watt v. Hertfordshire County Council [1954] 1 W.L.R. 835.

¹⁶ See [1984] P.L. 277, 306–307.

¹⁷ Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K.B. 223. A finding of ultra vires will not automatically establish lack of reasonable care: see Craig, (1978)94 L.Q.R. 428.447–449; Dunlopv. Woollahra Municipal Council [1982] A.C. 158. For example, it may well be more difficult to establish negligence in situations where the authority has merely failed to take account of a particular legally relevant consideration than where the decision is unreasonable in accordance with the Wednesbury test. There may also be problems as to causation: see Harlow. Compensation and Government Torts (1982), p. 92.

¹⁸ [1957] 1 W.L.R. 582.

¹⁹ 1955 S.L.T. 213, 217.

²⁰ [1970] A.C. at p. 1031.

²¹ Whitehouse v. Jordan [1981] 1 W.L.R. 246.

²² Ibid.

²³ See Lord Diplock, [1970] A C at pp. 1069–1071, in relation to the facts of the Dorset Yacht case.

²⁴ At p. 1068.

²⁵ [1978] A.C. 728.

²⁶ At p. 754.

²⁷ (1878) 3 App.Cas.430.

²⁸ [1978] A.C. 728, 757.

²⁹ It may be inferred from the passage just cited from Lord Wilberforce's speech that he would equate a public statute conferring a power of the Geddis type with a private statute conferring such a power. It would be the extent of the discretion conferred that his Lordship would regard as crucial, not whether it happened to be incorporated in a public or private Act. Cf. Fellowes v. Rother D.C., below, p. 444.

³⁰ [1978] A.C. 728, 761.

³¹ Public Torts and Contracts, p. 69ff.

³² Ibid.

³³ ibid., at p. 70, n.13.

³⁴ E.g. Sheppard v.Glossop Corporation [1921] 3 K.B. 132.

³⁵ Op. cit., p. 71, n.16.

³⁶ Ibid, at p. 70.

³⁷ [1978] A.C. 728, 754.

³⁸ Ibid. Aronson and Whitmore, however, conclude (op. cit., p. 73): “Perhaps these doubts over Lord Wilberforce's intended meaning … are overstated. An early indication that ‘discretion’ is used merely as the equivalent of non-justiciable ‘policy’ would certainly be welcome. That was clearly Lord Wilberforce's primary meaning.” This view has received the support of Hodgson J. in Sasin v. Commonwealth (1984) 68 F.L.R. 404, 420.

³⁹ [1932] A C 562, 580.

⁴⁰ [1978] A C.728, 754. Emphasis added.

⁴¹ An early illustration of this danger occurred in Meade v. Haringey London Borough Council [1979] 1 W.L.R. 637, a breach of statutory duty case. Lord Denning M.R. cited the decisions of the House of Lords in Anns and Dorset Yachl in support of the proposition that if a public authority acted ultra vires: “Any person who is particularly damnified thereby can bring an action in the courts for damages or an injunction, whichever be the most appropriate” (at p. 647).

⁴² [1984] P.L. 277.

⁴³ “A plaintiff complaining of negligence must prove … that action taken was not within the limits of a discretion bona fide exercised, before he can begin to rely upon a common law duty of care”: loc. cit., p. 755. It is interesting to note that Lord Diplock in the Dorset Yacht case more than once referred to the need to prove ultra vires as being “a condition precedent to … liability” rather than to the establishment of a duty (loc. cit., p. 1069. Emphasis added). Elsewhere, however, (see note 12 above), he referred to it as a preliminary to establishing jurisdiction.

⁴⁴ Seddon, “The Negligence Liability of Statutory Bodies: Dutton Reinterpreted” (1978) 9 F.L. Rev. 326, 336.

⁴⁵ Oliver [1980] C.L. P. 269.

⁴⁶ Ibid.,at p. 273.

⁴⁷ [1979] R.T.R. 369.

⁴⁸ Cases decided since Oliver's article was written and which might be interpreted as supporting her argument are mentioned below in parts 3(b) and 3(c).

⁴⁹ Road Traffic Regulation Act 1967. ss.54 and 55.

⁵⁰ [1978] R.T.R. 290, 298.

⁵¹ Ibid., at p. 300.

⁵² [1979] R.T.R. 369.

⁵³ Ibid., at p. 370.

⁵⁴ ibid., at p. 372.

⁵⁵ Ibid., at p. 373.

⁵⁶ [1921] 3 K.B. 132.

⁵⁷ That was indeed the basis upon which Lamley v.East Retford Corporation (1891) 55 J. P. 133 was distinguished in Sheppard v. Glossop Corporation. In t he former case the corporation had placed a post in t he middle of a footpath but failed to light it and were held liable to a pedestrian who walked into it at night. See, to the same effect, McClelland v. Manchester Corporation [1912] 1 K.B. 118, Morrison v. Sheffield Corporation [1917] 2 K.B. 866 and Fisher v. Ruislip-Northwood U.D.C. [1945] K.B. 584.

⁵⁸ [1979] R.T.R. 369, 374–375. Cf. the position in West v. Buckinghamshire County Council (1985) 83 L.G.R. 449.

⁵⁹ See [1978] R.T.R. 290, 298 (the policy/operational distinction) and 299 (Sheppard v. Glossop Corporation).

⁶⁰ See the text accompanying note 53, above.

⁶¹ [1980] C.L.P. 269, 273–274.

⁶² (1979) 77 L.G.R. 656. (Cf. Hallett v. Nicholson 1979 S.C. 1; Potter v. Mole Valley District Council (1982) The Times 22 October).

⁶³ Ibid., at p. 672.

⁶⁴ See, e.g., Williams v. Eady (1893) 10 T.L.R.41 (schoolmaster).

⁶⁵ [1983] 1 All E.R. 513.

⁶⁶ Ibid., at p. 518.

⁶⁷ See note 29, above, and the accompanying text.

⁶⁸ Unreported, 24 January 1983 (Lexis).

⁶⁹ A hypothetical example concerning building inspectors used in the Kinnear case (below) suggests the contrary.

⁷⁰ Cf. D.H S.S. v. Kinnear and others (1984) 134 N.L.J. 886; The Times, 7 July 1984, where children allegedly brain-damaged by whooping-cough vaccine sued the D.H.S.S. in negligence. Those aspects of the claim that comprised a challenge to the policy decision to establish a vaccination programme were struck out as disclosing no reasonable cause of action, as it was not alleged that the decision was ultra vires. However, the medical issues had much in common with those arising in ordinary medical malpractice suits where it is alleged that a practice approved by a respectable body of medical opinion should be regarded by the courts as negligent. It is unlikely that any part of the claim would have been struck out if the matter had been judged on the basis of ordinary negligence principles alone.

⁷¹ [1980] R.T.R. 111. See also West v. Buckinghamshire County Council (1985) 83 L.G.R. 449.

⁷² The deputy town clerk recalled that in 1970 92 road accidents in which dogs were involved had occurred in the urban district (loc. cit., p. 114)

⁷³ Though it should be pointed out that the difficulty stemmed at least partly from uncertainty as to the question to whom any duty was owed. Since this was a question which would have to have been considered in accordance with ordinary private law principles, the difficulties cannot be attributed solely to the need to deal with the policy/operational dichotomy.

⁷⁴ [1985] 2 All E.R. 985.

⁷⁵ There is no such power expressly given. However. s.4(4) provides that “the police authority … may.… provide and maintain such … equipment as may be required for police purposes of their area” and s.5(l) provides that the police force “shall be under the direction and control of the chief constable. … ” The power of the chief constable to advise the authority as to what equipment is required is presumably implied or incidental.

⁷⁶ Loc.cit., p. 992.

⁷⁷ Cf. Suleman v. Secretary of Slate for Home Affairs, The Times, 21 July 1981 (immigration officer's decision that he was not satisfied that S. was a returning resident: Thompson J. held that the same considerations sufficed to reject allegations that the officer had acted (i) in bad faith; and (ii) negligently). See also Haydon v. Kent County Council [1978] Q.B. 343. 361, 363.

⁷⁸ Cf. D.H.S.S. v. Kinnear and others (1984) 134 N.L.J. 886 (see note 70 above), where a similar comparison may be drawn between the medical issues arising (i) in respect of the “policy” aspects of the claims, which were struck out, and (ii) in respect of the “operational” aspects, concerning implementation of the vaccination programme, which were not. In addition, this case provides further evidence of the arbitrary nature of the dichotomy in the judge's holding that events leading up to the policy decision were “still within the area of discretion.” Thus, the careless oversight of some secretary in the D.H.S.S. which resulted in the non-submission of relevant reports to the person making the policy decision would not be characterised as an “operational” failure, whereas a similar oversight at the implementation stage would be. Note also the criticism of the dichotomy by D. Cohen and J.C. Smith that it “fails to recognise that all decisions of bureaucrats are both policy decisions (insofar as they establish objectives, standards and criteria to be taken into account by inferior bureaucrats), and operational decisions insofar as they are made in the context of achieving and implementing other, prior superior policy decisions.” (“Entitlement and the Body Politic: Rethinking Negligence in Public Law,” (1986) 64 Can. Bar Rev. 1, 26).

⁷⁹ It has also been quite frequently applied in Commonwealth courts. For a helpful survey of the cases, see Aronson and Whitmore, op. cit., pp. 77–97. For developments since 1982 see. e.g. Minister Administering the Environmental Planning and Assessment Act 1979 v. San Sebastian Pty. [1983] 2 N.S.W.L.R. 268; Sasin v. Commonwealth (1984) 68 F.L.R. 404; Sutherland Shire Council v. Heyman (1985) 59 A.L.J.R. 564; City of Kamloops v. Nielsen [1984] 2 SCR. 2; Bollard, “Liability of Local Authorities for Loss Caused through Administrative Action” (1984) 11 N.Z.U.L.R. 165; Atkinson, “Public Authorities, Negligence and Pure Economic Loss in Australia” (1984) 7 Univ. N.S.W.L.J. 285; Baker, “Maladministration and the Law of Torts” (1985) 10 Adelaide L.R. 207; Cohen and Smith, “Entitlement and the Body Politic: Rethinking Negligence in Public Law” (1986) 64 Can. Bar Rev. 1; Todd, “The Negligence Liability of Public Authorities: Divergence in the Common Law” (1986) 102 L.Q.R. 370.

⁸⁰ Aronson and Whitmorc, op. cit., p. 74; Crawford, (1983) 267 E.G. 578.

⁸¹ [1980] 1 O.B. 114.

⁸² That is, either a moral or a political duty or, if a legal duty, one which is not enforceable in the courts: ibid., at pp. 118–120.

⁸³ Since the Mulasa case was decided, the House of Lords has suggested, in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, that the decisive factor in determining whether the exercise of a power is subject to judicial review is the nature and justiciability of the subject-matter, rather than whether the power derives from statute or from the prerogative. The same argument might well apply to actions for damages.

⁸⁴ The concession by the plaintiff that “there may very well be perfectly good reasons why nothing effective could be done” does not sit very happily with an allegation of negligence. It appears that the damages were claimed for “unlawful arrest and detention”: the defence stated that the arrest and detention were not carried out for or on behalf of the Crown and that the Crown was not under any liability in respect of them ([1980] 1 OB. 114. 115).

⁸⁵ [1980] 1 OB. 114, 118. The remedy with which the plaintiff was primarily concerned was in the form of a declaration.

⁸⁶ Aronson and Whitmore state (op. cit., at p. 74) that “One would have expected a flood of actions against local and other authorities as a result of Anns. But if the law reports are anything to go by, Anns has not been used much in England in cases calling for special treatment of alleged negligence of government authorities.” Quite apart from the fact that this judgment, made in early 1982, seems somewhat premature, it is not clear that the case-law supports it.

⁸⁷ [1980] 1 W.L.R. 172.

⁸⁸ The House of Lords approved this course of action on the grounds that “if the soldiers had an answer to the claim based on assault and battery, that would also be an answer to the claim against them based on negligence and to leave both questions to them would only confuse.“ (Viscount Dilhorne. ibid., at p. 176).

⁸⁹ (1983) 133 N.L.J. 577.

⁹⁰ It was, in fact, unlikely that the County Council would have supported the application, since it was not consistent with the County's declared policy concerning superstores.

⁹¹ The precise basis of this claim was uncertain. Counsel had apparently advised that mandamus was not appropriate, but that there was possibly a claim under the Hedley Byrne principle.

⁹² (1981)42P.&C.R. 1.

⁹³ (1979)39P.&C.R. 223.

⁹⁴ On 14th December 1976 the council resolved to confirm the clerk's action: it was held that that rendered it authorised, but still could not have the effect of transforming into planning permission something which was not such.

⁹⁵ This particular point, it is submitted, is not wholly convincing. Only the council or its representatives could provide an authoritative statement as to whether planning permission had been granted, and the issue of the notice must have amounted to a representation to that effect. In the circumstances, however, it was not reasonable or permissible for Tesco to rely upon that representation. This, broadly, is the purport of the other points made by Beldam J.

⁹⁶ “Taff-Ely Revisited-the Negligence Aspect” (1983) 267 E.G. 578.

⁹⁷ Crawford suggests, loc. cit., p. 579, that Beldam J. follows, without citation, an obiter remark of Drake J. in Lyons v. F. W. Booth (Contractors) (1982) 262 E.G. 981 and the implication of Dunlop v. Woollahra Municipal Council [1982] A.C. 158. It is submitted, however, that those cases concerned quite different aspects of the planning process. Furthermore, the Court of Appeal in Strable v. Dartford Borough Council [1984] J. P. L. 329 appeared to decide that a negligence action was not a suitable remedy for an individual aggrieved by a planning decision.

⁹⁸ [1964] A.C. 465. It is arguable that one of the plaintiffs allegations in the Strable case, above, was of a similar nature and ought to have been dealt with accordingly.

⁹⁹ Hediey Byrne was apparently to have been the basis of the action threatened to induce the clerk to issue the notice: see note 91 above. Once the notice had been issued, and action taken in reliance, such a claim seems rather more appropriate.

^{page 453 note 1} A number of other such claims against public authorities have been decided without apparent reference to the policy/operational dichotomy: see, e.g., Solloway v. Hampshire County Council (1981) 79 L.G.R. 449, C.A. (nuisance); Russell v. Barnei London Borough Council (1984) 271 E.G. 699 (nuisance/negligence); Simkiss v. Rhondda Borough Council (1983) 81 L.G.R. 460, C.A. (occupiers' liability). See also Rivers v. Cutting [1982] 1 W.L.R. 1146, C.A. (vicarious liability).

^{page 453 note 2} [1978] Q.B. 343.

^{page 453 note 3} Per Lord Denning M.R., at p. 361, and Goff L.J., at p. 363. These judges also indicated that in any event it would not assist the plaintiff here.

^{page 453 note 4} (1981) 80 L.G.R. 337.

^{page 453 note 5} [1940] A.C. 880.

^{page 453 note 6} Per Ackner L.J., at p. 347.

^{page 454 note 7} Ibid.

^{page 454 note 8} Interestingly, this view has been described as one held by “cynics”: Oliver [1980] C.L.P. 269. If the cap fits ….!

^{page 454 note 9} [1967] 1 A.C. 645. For a discussion of this point, see [1984] P.L. 277, 301–303. For examples of nuisance cases where the policy/operational dichotomy appears not to have been discussed at all, see note 1 above, p. 453.

^{page 455 note 10} All of these issues have already arisen in the specific area of activity with which Anns was concerned: see, e.g. Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. [1985] A.C. 210; Kelleman v. Hansel Properties [1984] 1 W.L.R. 1274; Batty v. Metropolitan Property Realisations [1978] Q.B. 554; Kensington and Chelsea Area Health Authority v. Wettern Composities [1985] 1 All E.R. 346; Dennis v. Charnwood Borough Council [1983] Q.B. 409; Pirelli General Cable Works v. Oscar Faber and Partners [1983] 2 A.C. 1; Cynat Products v. Landbuild [1984] 3 All E.R. 513; Stewart v. East Cambridgeshire District Council (1979) 252 E.G. 1105; Worlock v. S.A.W.S. (1983) 265 E.G. 774; Lyons v. F. W. Booth (Contractors) (1982) 262 E.G. 981.

^{page 455 note 11} Per Brown, Goldberg and Ainsworth JJ. in Smith v. U.S. (1967) 375 F. 2d 243. 246.