Public Authority Liability in Negligence
Colin S. Phegan*
I. NEGLIGENCE AND THE PRIVATE ANALOGY
In the past, government functions have been divided into govern-
mental and proprietary categories for the purpose of denying
recovery for injury caused by actions falling within the govern-
mental category. While the use of the distinction for such purposes
has been justly discredited,’ the distinction may still provide a useful
focus for the special problems likely to be encountered in applying
private law principles to defendants engaged in governmental activ-
ity. There is no more fruitful a context in which to test this prospect
than the law of negligence.
Many examples can be found of the application of the law of
negligence to public authorities engaged in providing services such
as public transport, gas and electricity, water and sewerage, all of
which are classed as “proprietary” functions. Since a “private
analogy” is readily available in such cases, there has been need
for little more than a straightforward application of the rules ap-
plicable to a private individual engaged in similar activities.
The presence of the private analogy in such cases certainly does
not exclude consideration of matters unlikely to be encountered
is possible to argue, for
in actions against private persons. It
example, that a public authority on a limited budget may be ex-
cused from liability for an act which in ordinary circumstances
would constitute a departure from the standard of reasonable
care? Quite different implications, however, have been drawn from
the expansion of liability in hospital cases,2 and, according to the
* Senior Lecturer in Law, University of Sydney; Visiting Associate Professor
in Law, University of British Columbia.
The author wishes to acknowledge the many improvements made to the
original manuscript as a result of the helpful suggestions of Professors D. G.
Benjafield and W. L. Morison of the University of Sydney.
‘ See P.W. Hogg, Liability of the Crown (1971), 77-80.
2 E.g., East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74, 86 per
Viscount Simon L.C.; 96 per Lord Thankerton; 106 per Lord Porter.
8 One explanation of the expansion of liability of hospitals for negligence of
professional staff has been the transfer of hospitals from private to public
ownership. See J.G. Fleming, Law of Torts 4th ed. (1971), 319, fn.3.
McGILL LAW JOURNAL
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House of Lords in British Railway Board v. Herrington,4 not only
is a Railway Board subject to a standard of “common humanity”‘ ,
applicable to all, but such a body is more likely to be found liable
because of the “skill, knowledge and resources” which it possesses.
What constitutes a proprietary or governmental function differs
from country to country and from time to time. However, there is
a general trend in most Common law countries to remove from
private organizations certain areas of public service such as health
care and education7 in order to place them in the hands of govern-
ment departments or municipal corporations. It is possible to
transfer such activities into the governmental category accordingly,’
but history itself has supplied the private analogyf
There are finally those functions which are, and have been,
universally governmental, such as prisons or zoning and building
regulation. The private analogy is here most tenuous, yet many of
the most significant developments in recent years in the law of
negligence have originated in cases arising from the exercise of
such functions by public authorities.
1. Negligent supply of information or advice
As government activities increase and with them the accunula-
tion and storage of information, so too does the potential for neglig-
ent release of such information. Generally, the adverse consequen-
ces of such release (with the possible exception of defamatory
material) are likely to be economic. So long as recovery of economic
loss fell outside the ambit of negligence,10 with very limited excep-
tions,” its potential in this area was minimal. An action in negligen-
4 [1972] A.C. 877.
6Ibid., 898-9 per Lord Reid; 904-7 per Lord Morris of Borth-y-Gest.
6 Ibid., 898 per Lord Reid.
Actions against governmental and local authorities for injuries sustained
during hospitalization are numerous. E.g., Gold v. Essex County Council
[1942] 2 K.B. 293; Cassidy v. Ministry of Health [1951] 2 K.B. 343; Jones v.
Manchester Corporation [1952] 2 Q.B. 852. For actions against public school
authorities, see Carmarthenshire County Council v. Lewis [1955] A.C. 549;
Barnes v. Hampshire County Council [1969] 3 All E.R. 746; Victoria v. Bryar
(1970) 44 A.L.S.R. 174.
8 Schools are treated as exclusively a government activity in Hogg, supra,
note 1, 77.
9 See generally, G. Ganz, Compensation for Negligent Administrative Action
(1973) Public Law 84, 87-8.
‘Cattle v. Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453; Old Gate
Estates Ltd v. Toplis [1939] 3 All E.R. 209.
“1 Morrison Steamship Co. Ltd v. Greystoke Castle (Cargo Owners) [1947]
A.C. 265.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
ce was confined to those rare cases (e.g., Barnes v. Commonwealth
of Australia) of physical injury resulting from the release of inac-
curate information. In the Barnes case a memorandum was sent to
the plaintiff, the wife of a pensioner, requesting the return of her
husband’s pension certificate on the grounds that he had been
admitted to a mental hospital. Mr Barnes had not been, nor was
there any likelihood that he would be, admitted to a mental hospital.
The plaintiff, not knowing the memorandum to be false, suffered
nervous shock. Her right to sue the Commonwealth was unani-
mously upheld by the Supreme Court of New South Wales. David-
son J. in the course of his judgment, commented that:
… if a person doing an official act, … recognised … that he was com-
municating some serious information which might possibly affect the
recipient’s feelings strongly, surely he owed some duty to that person
to take care that the information which he was communicating was
correct.’ 3
More recently the decision in Hedley Byrne & Co. Ltd v. Heller
& Partners Ltd 14 has broadened -the scope of liability for the neglig-
ent supply of information causing economic loss. Had this liability
been confined to those who were parties to a “special relationship”,
recovery would have been restricted to loss suffered by those to
whom the information was supplied or for whom it was intended. 5
However, the English Court of Appeal in Ministry of Housing and
Local Government v. Sharp”0 ignored the limitation and extended
the right to recover for economic loss to those who might fore-
seeably be affected by the release of inaccurate or misleading in-
formation. In the Sharp case an encumbrance was not disclosed
in an official certificate of search under the Land Charges Act,
1925,1″ which had been supplied to a prospective purchaser of the
19 (1937) 37 S.R. (N.S.W.) 511.
13 Ibid., 515.
14 [1964] A.C. 465.
25 Ibid., 483-86 per Lord Reid; 503 per Lord Morris of Borth-y-Gest; 514 per
Lord Hodson; 530 per Lord Devlin.
16 [1970] 2 Q.B. 223.
17 15-16 I Geo.V, c.22, s.17:
“(1) Where any person requires search to be made at the registry for
entries of any matters or documents, whereof entries are required or allow-
ed to be made in the registry by this Act, he may on payment, of, the pres-
cribed fee lodge at the registry a requisition in that behalf. (2) The registrar
shall thereupon make the search required, and shall issue a certificate
setting forth the result thereof. (3) In favor of a purchaser or an intending
purchaser, as against persons interested under or in respect of matters or
documents whereof entries are required or allowed as aforesaid, the cer-
tificate, according to the tenor thereof, shall be conclusive affirmatively or
negatively, as the case may be.”
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property affected. It was not, however, the prospective purchaser
who complained. The Minister of Housing and Local Government
had paid compensation to the original owner when permission for
residential development was refused by the local planning authority.
Permission was later granted and the compensation, notice of which
had been lodged at the local land registry, became repayable. The
Minister was faced with a dilemma; he could not recover from the
original owner because the right to repayment was enforceable
only against the owner for the time being and he could not recover
from the owner for the time being because that owner had pur-
chased in good faith, relying on the certificate of search which had
failed to disclose the compensation notice. So the Minister turned
to the clerk of the local land registry who had negligently issued the
certificate and the local council who employed him. Counsel for the
defendant clerk argued that Hedley Byrne did not extend to a
plaintiff towards whom the defendant had assumed no responsi-
bility. Lord Denning M.R. replied that:
… the duty to use due care in a statement arises, not from any voluntary
assumption of responsibility but from the fact that the person making
it knows, or ought to know, that others being his neighbours in this
regard would act on the faith of the statement being accurate. That is
enough to bring the duty into being. It is owed, of course, to the person
to whom the certificate is issued and whom he knows is going to act
on it … But it is also owed to any person whom he knows or ought to
know will be injuriously affected by a mistake, such as the incum-
brancer here.’ 8
Salmon L.I. conceded that the case did not “precisely fit into
any category of negligence yet considered by the courts”. 19 His
Lordship nonetheless concluded that a duty to exercise care had been
undertaken by the defendants and that “it would be absurd if a
duty of care were owed to a purchaser but not to an incumbran-
cer”.20
The relationship between this case and Hedley Byrne itself has
undergone close scrutiny elsewhere,2′ and textwriters agree that the
case is “unique’ 22 and “exceptional”.23 The influence of Ministry
of Housing v. Sharp may therefore be confined within the narrow-
est possible limits. Nonetheless, the decision demonstrates
the
posibility of accommodating the law of negligence to the particular
18Supra, note 16, 268-9.
19 Ibid., 278.
20 Ibid., 279.
21 Winfield and Jolowicz on Tort 10th ed. (1975), 238-39.
22Ibid.
23Fleming, supra, note 3, 161.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
liability of government bodies dispensing information and the
somewhat oblique use which can be made of Hedley Byrne. In
Sharp, older cases such as Herbert v. Pagett 4 and Douglass v.
Yallop25 were relied upon. 26 So used, these cases were treated as
authority for a right to sue for economic loss resulting from reliance
placed on inaccurate court records.
With the aid of Hedley Byrne and without the generous inter-
pretation of that case necessary to support Ministry of Housing v.
Sharp both Canadian and Australian Courts have been able to im-
pose liability On local authorities in a number of recent cases.
A municipal corporation was held liable in Windsor Motors Ltd
v. District of Powell River 7 for the negligence of its licence inspec-
tor who had issued a licence to operate a used car business in a
zone in which such use was not permitted. When the error was
discovered the plaintiff company was required to move the business
elsewhere. The considerable financial loss incurred in the move was
claimed against the corporation. Relying on Hedley Byrne, the
British Columbia Court of Appeal upheld the decision of the trial
judge in the plaintiff’s favour. Hedley Byrne was similarly applied
to the negligent issue of building permits in Gadutsis v. Milne”8
and Porky Packers Ltd v. Town of The Pas.2 9
In Hall v. Canterbury Municipal Council3 a developer who had
obtained and relied on a development consent, which was later
discovered to be null and void, was able to recover damages from
the defendant Council for failure to comply with a planning scheme
ordinance requiring consultation with the New South Wales State
Planning Authority. This decision was applied in G.J. Knight
Holdings Pty Ltd v. Warringah Shire Council3 ‘ in which the plain-
tiff had relied on a development consent which was invalid because
it purported to allow an impermissible use of the land in question.
24 (1663) 1 Lev. 64.
25 (1759) 2 Burr. 722.
26 [1970] 2 Q.B. 223, 266 per Lord Denning M.R.
27 (1969) 4 D.L.R. (3d) 155. In Couture v. The Queen (1972) 28 D.L.R. (3d)
301 the right to sue the Canadian Radio-Television Commission for the
negligent issue of an invalid cablevision license was acknowledged. The
plaintiff’s claim was unsuccessful only because of his failure to establish
a casual connection between the defendants’ reassurances of the validity of
the licence and his loss.
28 [1973] O.R. 503.
29 (1974) 46 D.L.R. (3d) 83; rev’d (1976) 7 N.R. 569.
30 [1974] 1 N.S.W.L.R. 300.
3′ [1975] 2 N.S.W.L.R. 796.
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While these two cases would seem to be adequately explained by
the application of Hedley Byrne,32 they raise fresh doubts about
the -decision of the Canadian Supreme Court in Welbridge Holdings
Ltd v. Metropolitan Corporation of Greater Winnipeg” in which a
development company sued the defendant corporation in neglig-
ence for its alleged carelessness in passing a zoning by-law later
declared invalid for procedural irregularities. The building permit
issued pursuant to the by-law was revoked and the plaintiff sought
to recover the loss sustained in proceeding with the development in
reliance on the permit. It was held that its conduct fell outside the
reach of the law of negligence, because the carelessness of the
corporation was committed in the course of its legislative or quasi-
judicial functions. Although the error complained of was prepara-
tory to the exercise of such functions (a re-zoning hearing), it may
not have been necessary to treat the continuing effect of a pro-
cedural oversight as part of such exercise. 34
2. Other Government functions
There have been significant developments in areas other than
the supply of inaccurate
information or misleading advice. In
Dutton v. Bognor Regis U.D.C.35 the defendant Council was held
liable for the negligence of its building inspector in the inspection
of the foundation of a house on a housing estate in the Council’s
district. The imposition of a duty of care on a local authority in
such circumstances has understandably alarmed officers of such
bodies. It heralds a change in the direction of the law to which
other courts have already responded. In Collins v. Haliburton, Ka-
wartha Pine Ridge District Health Unit36 the defendant authority
was held liable in negligence for ruining the plaintiff’s business by
32 Despite the reference by Yeldham . to Ministry of Housing v. Sharp,
ibid., 805.
33 (1972) 22 D.L.R. (3d) 470.
34For a critical evaluation of this case see H.L. Molot, “Tort Remedies
Against Administrative Tribunals for Economic Loss” in L.S.U.C. Special
Lectures in New Developments in the Law of Torts (1973), 413, 438-43.
35 [1972] 1 Q.B. 373. For comment on the case, see W. Horton Rogers,
Defective Premises – The Council will Pay (1972) 30 Camb.LJ. 211; R. Ha-
milton (1973) 8 U.B.C. L.Rev. 177; C. Harvey, Economic Losses in Negligen-
ce (1972) 50 Can.Bar Rev. 580, 609-11; B.V. Slutsky, The Liability of Public
Authorities for Negligence: Recent Canadian Developments (1973) 36 M.L.R.
656.
36 [1972] 2 O.R. 508.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
acting with undue haste in issuing a notice to cease his processing
and packaging of chicken offal on the ground that it was an
offensive trade. Donohue J. in the, Ontario Supreme Court referred
to Dutton’s case as pointing the way to a remedy for the plaintiff.ST
The Collins judgment, however, has met -with some criticism38
and in the recent decision of McCrea v. Corporation of City of White
Rock”9 a note of caution is sounded with regard to the Dutton case.
Alterations had been carried out to a building subsequently occupied
by the plaintiffs. The roof collapsed because of defective work
which, had it been discovered by the corporation’s building ins-
pector at the appropriate time, would have been condemned. The
corporation argued that it was not customary to inspect except
at the request of the contractor and no such request had been made.
Dutton was distinguished on the grounds that, whereas a negligent
inspection had taken place in that case, no inspection had taken
place in McCrea.4″ Furthermore, serious doubts were cast on whet-
her Dutton should be followed in Canada at all.41
While the English Court of Appeal has led the expansion of
liability in negligence into local government, the House of Lords
has made a significant contribution in one of the main fields of
central governmental responsibility: the administration of correc-
tive institutions. Prior to 1970, decisions on the responsibilities of
prison authorities were sparse and uncertain. As to the safety of
the prisoners themselves, injuries sustained while doing prison work
were held to fall outside industrial legislation42 and outside the
common law duty between master and servant.43 Later cases did
concede a duty not to subject prisoners unreasonably to undue
risk of injury44 even at the hands of fellow prisoners 5 Quite
37 Ibid., 513.
38 E.g., Slutsky, supra, note 35, 660.
39 [1975] 2 W.W.R. 593.
40 Ibid., 597 per Maclean J.A.; 609 per Robertson l.A.; 621 per Seaton l.A.
41 Ibid., 599-604 per Robertson JA. But the majority of the Supreme Court
of Canada referred to Dutton without disapproval in O’Rourke v. Schact,
infra, note 147.
4 2 Bullin v. Prison Commissioners [1957] 1 W.L.R. 1186; Hall v. Whatmore
[1961] V.R. 225.
Zealand [1965] N.Z.L.R. 134.
4 Gibson v. Young
(1899) 21 L.R. 7 (N.S.W.); Morgan v. A.G. of New
44 Quinn v. Hill [1957] V.R. 439; Hall v. Whatmore, supra, note 42; Morgan
v. A.G. of New Zealand, ibid.; Howard v. Jarvis (1958) 98 C.L.R. 177. Cf. U.S. v.
Muniz, 374 U.S. 150 (1962).
45 Ellis v. Home Office [1953] 2 All E.R. 149; D’Arcy v. Prison Commissioners,
The Times, Nov. 17, 1955; and since the Dorset Yatch Co. case itself: Dixon
McGILL LAW JOURNAL
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separate was the duty to individual members of the public to pre-
vent the escape (or release) of prisoners likely to do harm once out
of custody. While courts were ready to admit the existence of such
a duty, 6 they were equally ready to hold that in the particular case
the prisoner’s record did not support a conclusion that it was
reasonably foreseeable that he would do any harm of the sort that
was inflicted4 7 In only one case (an English County Court decision)
were the prison authorities actually held liable to the owner of a
lorry damaged while being used by a boy who had escaped from
the defendants’ Borstal 8
Then came Home Office v. Dorset Yatch Co. Ltd.4 9 Seven Borstal
boys escaped from an island where they had been working under
the control and supervision of three prison officers. The boys caused
a yacht to collide with the Silver Mist, a motor yacht owned by
the plaintiff. They then boarded her, cast her adrift and caused
considerable damage to her and her contents. Both the Court of
Appeal5″ and, by a majority of four to one, the House of Lords 1
held that a duty was owed to the plaintiffs to take reasonable care
to prevent Borstal trainees from escaping from custody although
their Lordships emphasized the physical proximity of the property
damaged and the place of escape. Damage to the plaintiffs’ property
was “a manifest and obvious risk” 52 and the property was “situate
in the vicinity of the place of detention” 3
These recent cases are sufficient in number and importance to
prompt an investigation of particular problems that are likely to
be encountered in the application of the law of negligence to goverm-
ment functions. The devices adopted to meet these problems may
be producing a distinctive branch of the law of negligence.
v. Western Australia [1974] W.A.R. 65. Contra, Keatings v. Secretary of State
for Scotland [1961] S.L.T. 63, discussed in Hogg, supra, note 1, 70-71.
40 Williams v. State of New York, 127 N.E. 2d 545 (1955); Thorn & Rowe
v. Western Australia [1964] W.A.R. 147.
47A similar reason was given for defeating the plaintiff’s claim in Ellis
v. Home Office, supra, note 45.
48 Greenwell v. Prison Commissioners (1951)
(1952) 68 L.Q.R. 18.
49 [1970] A.C. 1004.
50 [1969] 2 Q.B. 412.
51 Supra, note 49.
52 Ibid., 1035 per Lord Morris of Borth-y-Gest.
53 Ibid., 1070-71 per Lord Diplock.
101 LJ. 486; also noted in
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
II. ADMINISTRATIVE DISCRETION AND LIABILITY IN
NEGLIGENCE
1. Planning and operational levels of government
It has been said that all power is discretionary,.4 that is, no duty
is owed. In this sense the exercise of governmental powers is not
subject to the law of negligence. There are, however, many cases
in which public authorities exercising governmental responsibility
have been held liable in negligence, and defendants relying on
statutory authority are protected from liability only in the absence
of negligence. 55 However, the word “discretionary” is used in a
narrower sense which includes a “privilege to be negligent”. For
example, the United States Federal Tort Claims Act of 1946 exempts
the Government from claims based on “the exercise or performance
or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Govern-
ment…”.
In an attempt to explain this exception, the United States Su-
preme Court distinguished between the “planning” and “operation-
level of government.5 7 Elaborating on this, Professor Davis
al”
comments:
When the President or a cabinet officer, pursuant to a proper delegation
decides that justice or wisdom calls for a particular course of action, a
court may well be bound by the determination in the same way that it
is bound by legislation. The court thus may properly refrain from
inquiring whether the action was negligent, for even if the court deems
itself competent to inquire, the power may be committed to the officer
to act unwisely or mistakenly or even negligently.5 8
Shortly after he adds:
Perhaps the line is not between those who plan and those who operate
(for all do some planning), nor between those who exercise discretion
and those who do not (for all do), nor between high-salaried and low-
salaried employees (for the government should be liable for negligence
of a cabinet officer driving a government car on government business),
nor between manual and mental workers, nor between those who affect
economic interests and those who affect physical results. The line must
54 B. Schwarz and H.W.R. Wade, Legal Control of Government (1972), 188.
55Vaughan v. Taff Vale Ry (1860) 5 H. & N. 679; Hammersmith Ry v.
Brand (1869) L.R. 4 H.L. 171; Manchester Corporation v. Farnworth [1930]
A.C. 171; Benning v. Wong (1969) 43 A.LJ.R. 467.
56 U.S.C.A. para.2680(a).
57Dalehite v. United States, 346 U.S. 15, 42 (1953).
58K.C. Davis, Tort Liability of Governmental Units (1956) 40 Minn.L.Rev.
751, 799-800.
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be located on the basis of a judgment about the propriety of making ad-
justments through the medium of damage suits.5 9
The view that it is the court’s responsibility to see that the
application of the law of negligence does not impede the exercise
of legislative and administrative freedom has also been advocated
by Professor Hogg. Referring to an administrative decision to
establish a hospital, he observes that such a decision
… depends upon a whole host of considerations. Some of these are
highly technical, others are political. Of the latter, the crucial question
may be whether and to what extent scarce governmental resources can
be made available in priority to other projects. No court is in as good
a position to reach such a complex judgment as the appropriate govern-
ment officials.60
While other common law jurisdictions do not share its legislative
basis, the planning/operational distinction has been promoted as
“a good and, indeed, an inevitable limitation which must be accept-
ed in every legal system”.”‘
Laskin J., in Welbridge Holdings Ltd v. Metropolitan Corporation
of Greater Winnipeg62 applied the distinction:
A municipality at what may be called the operating level is different
in kind from the same municipality at the legislative or quasi-judicial
level where it is exercising discretionary statutory authority. On ex-
ercising such authority, a municipality (no less than a provincial Legis-
lature or the Parliament of Canada) may act beyond it*s powers in the
ultimate view of the Court, albeit it acted on the advice of counsel. It
would be incredible to say in such circumstances that it owed a duty
of care giving rise to liability in damages for its breach.63
While the transition of the distinction across the United States/
Canada border ought to be welcomed, it is doubtful whether the
most appropriate set of facts were chosen for its introduction.0
The omission on the part of the defendant corporation to consult
interested parties in the re-zoning process may well have taken
place at the planning stage but could hardly be said to be part of
the planning function, that is, of any real exercise of discretion in
the sense discussed below.
A better example of its use is the later case of Berryland Canning
Co. Ltd v. The Queen 5 in which the reasoning in Welbridge Holdings
59 Ibid.
GO Hogg, supra, note 1, 86.
61 W. Friedmann, Law in a Changing Society (1959), 389.
62Supra, note 33.
6 (1972) 22 D.L.R. (3d) 470, 478.
64 Cf. supra, note 34.
65 (1974) 44 D.L.R. (3d) 568.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
was applied to a more appropriate set of facts. In that case, Heald 1.
refused to apply the law of negligence to a decision by the Depart-
ment of National Health to phase out an artificial sweetener
used in canned foods produced by the plaintiffs. But the difficulty
of distinguishing between what is “planning” and what is “oper-
ational” must not be underestimated. This difficulty is well illus-
trated by the Dalehite case from which the distinction is drawn.”
Sulphur and ammonium nitrate fertilizer about to be shipped as
part of the American foreign aid programme exploded on board
ships docked in the port of Texas City. Five hundred and sixty
people were killed; another three thousand were injured. Majority
and minority agreed that administrative discretion was beyond the
reach of an action in damages, but their opinions differed widely
on where the resulting protection began. The majority were of the
opinion that:
… [the] decisions held culpable were all responsibly made at a planning
rather than operational level and involved considerations more or less
important to the practicability of the Government’s fertilizer program. 7
Mr Justice Jackson, delivering the dissenting judgment, denied that
liability in this case would make the discretion of executives and
administrators “timid and restrained”.6 8
The common sense of the matter is that a policy adopted in the exercise
of an immune discretion was carried out carelessly by those in charge
of detail. We cannot agree that all the way down the line there is im-
munity for ‘every balancing of care against cost, of safety against pro-
duction, of warning against silence. 69
Seventeen years later the problem remained unresolved. In Pro-
fessor Davis’s words:
What the law of the discretionary function exception most needs at this
point is a formulation to help the courts in their difficult task of locating
the line between liability and immunity …. The case law under that
distinction is moving too far away from the purposes of the immunity.
Decisions near the borderline should be based on those purposes. Courts
should impose liability on the government except when doing so will
allocate power to the courts that is better left with the administrators.70
He goes on to commend the decision in Johnson v. State of Califor-
nia, 1 in which negligence was alleged on the part of the State
OGSupra, note 57.
67 Ibid., 42.
68 Ibid., 58.
09 Ibid.
70 K.C. Davis, Administrative Law Treatise (1970 Supplement), 846.
7′ 69 Cal.2d 782, 447 P.2d 352 (1968).
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Youth Authority for allowing Mr and Mrs Johnson to adopt a 16
year-old boy without warning them of his “homicidal tendencies”
which later led to an assault on Mrs Johnson. The problems raised
in that case paralleled those in the Dorset Yacht Co. case; 72 a de-
cision had to be made on whether or not the alleged negligence
occurred at the “level of governmental decisions calling for judicial
restraint”73 The basic policy involved in formulating penal and
parole practices (even in a decision to release a particular prisoner
or other detainee) was acknowledged as falling outside the proper
sphere of judicial control.14 But neither carelessness in allowing
the escape of the Borstal boys, nor failure to warn of homicidal
tendencies, could be so regarded. The State Youth Authority in
Johnson was therefore held liable.
Once an official reaches the decision to parole to a given family … the
determination as to whether to warn the foster parents of latent dangers
facing them presents no such reasons for immunity; to the extent that
a parole officer consciously considers pros and cons in deciding what
information, if any, should be given he makes such a determination at the
lowest ministerial rung of official action. Judicial abstinence from ruling
upon whether negligence contributed to this decision would therefore be
unjustified.75
The decision recognizes that in cases not clearly on one side of
the line nor the other it may be relevant to show that the employee
“actually reached a considered decision knowingly and deliberately
encountering the risks that give rise to plaintiff’s complaint”. 7 It
may well be helpful, especially in those cases in which the planning/
operational distinction is unclear, to insist that there must have
been a “real” exercise of discretion by way of a considered choice
between possible courses of action before such discretion can be
relied upon as a basis of immunity from civil action.
This device did not meet with Lord Reid’s approval in the Dorset
Yacht Co. case. Responding to the argument that there would have
been no liability had the Borstal boys been deliberately released,
his Lordship stated:
Presumably when trainees are released either temporarily or perman-
ently some care is taken to see that there is no need for them to
resort to crime to get food or transport. I could not imagine any more
72These two cases are compared in Ganz, supra, note 9, 89-91.
73 Supra, note 71, 797.
74 bid., 795-7; [1970] A.C. 1004, 1037 per Lord Morris; 1068-69 per Lord Diplock.
75 Supra, note 71, 795-96.
76tbid., 794, fn.8.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
unreasonable exercise of discretion than to release trainees on an island
in the middle of the night without making provision for their welfareyr
Since the decision to release would not be taken at “the lowest
ministerial rung of official action”,7 s Lord Reid either places a limit
on the protection of discretionary action in the borderline area
between planning and operational levels, or goes further and con-
templates an ultimate limit on discretion even at the planning
level. An earlier statement in his judgment suggests that it may be
the latter:
There could … be liability if the person entrusted with discretion either
unreasonably failed to carry out his duty to consider the matter or
reached a conclusion so unreasonable as again to show failure to do his
duty.79
Such uncertainty is inevitable given that the “planning/operational”
distinction as such has been almost entirely ignored by Common-
wealth courts.8 0
2. Nonfeasance
The need to insulate administrative discretion from the law of
negligence has certainly not eluded Commonwealth courts. How-
ever, their solution has been far less satisfactory than that adopted
by the courts of the United States. Rather than attempt to formulate
a basic rule peculiarly appropriate to public responsibility they
have resorted to the much abused and often unintelligible distinc-
tion between misfeasance and nonfeasance. East Suffolk Rivers
Catchment Board v. Kent8 l has been responsible for elevating the
concept of nonfeasance, as it applies to public authorities, to its
present level of importance. The defendant Board, in charge of the
maintenance of banks and drainage works on rivers in its area,
took one hundred and sixty-four days to repair a breach caused by
flooding. Reasonably efficient work would have achieved the same
result in fourteen days. The plaintiff sought to recover damages for
the harm done by salt water to his pastures during the additional one
hundred and fifty days, harm which could have been avoided with
the exercise of reasonable care and skill. The House of Lords, by a
majority of four to one, 2 held the Board not liable. It had only a
77 Supra, note 49, 1031 per Lord Reid.
7 8 Supra, note 71, 795-96.
79 Supra, note 49.
s0 See Ganz, supra, note 0, 91. The exception is Welbridge Holdings Ltd v.
Metropolitan Corporation of Greater Winnipeg, supra, notes 33-4 and 62-4.
8 l Supra, note 2.
82 Ibid., Lord Atkin (dissenting).
McGILL LAW JOURNAL
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satutory power and not a duty to act; its intervention had not ag-
gravated damage which had been caused by the flood-waters; and
in the case of a local board, special account had to be taken of the
limitations imposed by inadequate staff, equipment and financial
3
resources.8
This resort to considerations of public policy was really un-
justified given the facts of the case. No evidence was brought by the
Board to show that its initial choice of method was prompted by
a penury of resources. Lord Thankerton’s reference to the allocation
of the Board’s resources was purely speculative:
… [ilt 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 particular repair is more than its limited
finances would permit.8 4
Lord Romer referred to a selection of methods by the Board “in
the exercise of discretion”, 5 but there is no suggestion in the state-
ment of facts of any considered choice between possible courses
of action.”6 In fact, Lord Romer was moved to describe the at-
tempt to fill up the breach, by throwing bags of clay into it, as
“quite ridiculous”.8 7 In itself, such conduct could be the result of a
serious error in the planning stage leading to “a conclusion so un-
reasonable as to show failure to do [one’s] duty”.,8 But this analysis
has difficulties of its own; the planning/operational distinction
provides a more satisfactory method of exposing the weaknesses
in the East Suffolk judgments.
It is doubtful whether the choice of method to stop the breach
in the river bank was more than an operational decision;
the
planning stage was complete when the Board decided to intervene.
If the decision to resort to ineffective means involved no “real”
exercise of discretion, the courts are fully justified in intervening
to determine liability for a mishandled emergency.8 9 Although a
decision to take no action will escape such adjudication, the ar-
gument, that liability for “taking a chance” but failing is an
83 Ibid., 86 per Viscount Simon L.C.; 96 per Lord Thankerton; 106 per Lord
Peter. Cf. supra, note 2.
84 Supra, note 2, 86.
85 Ibid., 102.
86 Cf. supra, note 49, 1031.
8 7 Supra, note 2, 99.
88 Cf. supra, note 49, per Lord Reid.
89 Cf. Davis, supra, note 58.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
invitation to take no action at all,90 is not unanswerable. Persistent
refusal to take action will not go unchallenged; maladministration
will ultimately be judged by a higher administrative authority or
the electorate itself. In addition, a -deliberate refusal to act, in the
interest of self-protection, may well be construed as an exercise of
discretion in bad faith, thus exposing the authority to liability of
another kind. 1
a) Causation
Considerable reliance was placed in the East Suffolk case92 on
the decision in Sheppard v. Glossop Corporation. In the latter,
the defendant corporation, as an economy measure, had ordered
its gas street lamps to be extinguished at 9 p.m. The plaintiff was
injured when he fell over a wall having lost his way in the dark
after the lamps had been put out. The two cases can be distinguish-
ed: a decision not to light is clearly an exercise of discretion;
is
ineffectual attempts at mending the breach in East Suffolk
negligent performance of a task upon which the Board, in its
discretion, .had already decided to embark. If an analogy could be
found in Sheppard v. Glossop Corporation, it would be negligence
in lighting” rather than not lighting. 5
The refusal by the majority in East Suffolk to accept this
distinction is partly explained by what Lord Thankerton described
as the “only real question””0 in the case, namely that of causation.
In Sheppard v. Glossop Corporation” Scrutton L.J. had not only
distinguished between negligence in lighting and failure to light,
but also between negligence in lighting and failure to light “dangers
which they [i.e. the defendant corporation] have not themselves
90 An argument used by both Lord Romer and Lord Porter in the East
Suffolk case. See supra, note 2, 98-9 and 106 respectively. See also Hogg,
supra, note 1, 90.
91 E.g., the action based on “misfeasance in a public office”. Roncarelli
v. Duplessis (1959) 16 D.L.R. (2d) 689; Farrington v. Thomson and Bridgland
(1959) V.R. 286. These, and other relevant cases, are discussed in Hogg,
supra, note 1, 81-85 and by B.C. Gould, Damages as a Remedy in Administra-
tive Law (1972) 5 N.Z.U.L.R. 105, 112-22.
92 Supra, note 2, 87 per Viscount Simon L.C.; 99-100 per Lord Romer, 105 per
Lord Porter.
23 [1921] 3 K.B. 132.
04 Which was not what occurred in that case. See ibid., 149 per Scrutton L.
95 Cf. Lord Atkin (dissenting) in the East Sufflok case supra, note 2, 90.
N Ibid., 96.
97 Supra, note 93.
McGILL LAW JOURNAL
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created”. 98 In East Suffolk the flooding was caused by the sudden
rise in the tide and gale force winds. The plaintiff would have
sustained the damage whether the defendant Board had intervened
(as it did) or not. Since the Board was under no duty to intervene,
the negligence of its servants was not the “cause” of the plaintiff’s
injury.
Determining the effective legal cause of an injury, which has
more than one cause in fact, is not an easy task, especially when the
causes in fact are independent in origin and time. Professor Fleming
has nonetheless put forward as a “modest proposal” the suggestion
that:
*- where the additional or alternative cause is of innocent origin, it
should be taken into account, if not for the purpose of eliminating the
causal relevance of the other (guilty) factor, at all events of reducing the
recoverable loss. 9
The causation argument of the majority in East Suffolk is con-
sistent with this suggestion. It was this same argument that was
relied upon by the High Court of Australia in The Administration
of the Territory of Papua and New Guinea v. Leahy.100 Referring
to the failure of the administration’s officers to do more than they
did towards eradicating the ticks from the plaintiff’s cattle-grazing
properly, Kitto J. endorsed the conclusion in the court below that
the cause of the continued tick infestation was the ticks, not
negligence on the part of the administration.’ 0′
However, the very fact that the majority of their Lordships in
East Suffolk were prepared to surrender so easily to general prin-
ciples of causation exposes an inconsistency in their approach to the
case as a whole. In the discussion of the nature of the duty owed by
the defendant Board, importance was attached to factors such a
manpower and financial resources 1 2 which are peculiarly relevant
to the determination of the liability of public authorities. Yet no
corresponding adjustment was forthcoming in disposing of the
question of causation. There may be justification for discounting
the culpable act of a private individual as causally irrelevant to
consequences which were, in any case, bound to occur through
natural forces. There is no corresponding justification in the case
98 Ibid., 150.
99 Fleming, supra, note 3, 172.
100 (1961) 105 C.L.R. No.6.
101 Ibid., 21.
10 See supra, note 83.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
of a public authority, an essential function of which is the manipul-
ation and control of such natural forces. 103
It was this concept of “control” which appealed to Lord Den-
ning M.R. and Sachs L.J. as a means of establishing a duty on the
local council in Dutton v. Bognor Regis U.D.C.,1′ 4 in which the
defendant council was held responsible for the results of subsidence
not of its own creation. However, the control concept is an un-
convincing basis on which to distinguish the two cases, 105 for if
this element of control explained the duty of the council in the
conduct of its buildings inspection functions, it may equally be
used to suggest that the defendant should have been liable in East
Suffolk. This does not mean that the cases cannot be distinguished.
Dutton’s case and others in which liability has been based on
negligent inspection’ 0 do not share with East Suffolk the difficulty
created by the causation rule. They were all cases in which the
existing danger to which the defendant authority had failed to
avert was man-made. The courts have encountered little difficulty
in finding the necessary causal connection between the injury and
act of negligence in such cases.1 Furthermore, Dutton has raised
fresh doubts about the workability of the nonfeasance criterion.
Both Dutton and East Suffolk fall on the same side of the planning/
operational distinction. Decisions not to inspect 18 and decisions not
to repair are made at the planning stage; once inspection or repair
is embarked upon, the activities become operational, subject to
the operation of the causation rules 1 9 and no longer immune from
judicial evaluation.
b) Reliance
There is another line of argument which adds support to the
view that rules of causation should be adjusted in cases concerning
intervention of public authorities. This argument is based on the
element of “reliance”” 0 so fundamental to the special-duty relation-
103 Cf. Gould, supra, note 91, 109.
104 [1972] 1 Q.B. 373, 391-2 and 403, respectively. For a more detailed dis-
cussion of the case, see supra, note 35.
105 Horton Rogers, supra, note 35, 212.
‘0 6 Ostash v. Sonnenberg (1968)
67 D.L.R. (2d) 311; Armstrong v. City
of Regina [1972] 1 W.W.R. 685..See Slutsky, supra, note 35, 659.
107 Fleming, supra, note 3.
108McCrea v. City of White Rock, supra, note 31.
109Supra, notes 99-103.
110 See generally: G.D. Goldberg, The Tortious Duties of Care: Reflections on
Dutton v. Bognor Regis U.D.C. (1972) 1 Anglo American Law Review 509, 517-8;
Slutsky, supra, note 35, 661-2, fn.44.
McGILL LAW JOURNAL
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ship envisaged in Hedley Byrne v. Heller.”‘ But it is only in a more
general sense that reliance has any relevance to the present context;
in Dutton’s case Stamp L.J. described the council’s approval of the
building foundations as “showing the green light”.” His Lordship
continued: “he who shows the green light in such circumstances
as these causes the consequential injury.”11 3
Presumably such causal link is at least partly created by the
tacit reliance placed on the council’s competence. It is this reliance
on a public authority’s competence which may induce others to
believe that no action on their part is necessary. But if East Suffolk
is any guide, such reliance would have to be expressly pleaded by
the plaintiff in order to make it a relevant factor in the causal
chain.114
c)
Immunity of highway authorities
Regarded as a special example of nonfeasance is the immunity
of highway authorities for failure to repair even known dangers on
the highway as long as these were not the result of their own
negligence in construction or repair.11 This immunity arose from
the protection offered to local residents who were held personally
liable. When this personal liability was later transferred to local
corporations, the immunity rule was transferred with it, its survival
thus becoming an historical anomaly.
The effect of the immunity rule is that the highway authority is
free from liability as long as intervention has neither added to an
already existing danger nor created a new one.” 6 To this extent the
causation issues are very similar to those in East Suffolk. However,
the danger which calls for removal in the highway cases is of a
somewhat different composition than that which arose in East
Suffolk. In the highway authority cases the danger is usually one
III Supra, note 14, especially 486 per Lord Reid; 496 per Lord Morris.
112 Ibid., 410.
113 Ibid.
114Supra, note 2, 107 per Lord Porter.
115 See W. Harrison Moore, Misfeasance and Non Feasance in the Liability
of Public Authorities (1914) 30 L.Q.R. 415; W. Friedmann, Liability of High-
way Authorities (1951) 5 ResJud. 21; G. Sawer, Non-Feasance Revisited (1955)
18 M.L.R. 541; Non-Feasance under Fire, Ainge v. Town and Country Planning
Appeal Board (1966) 2 N.Z.U.L.R. 115; F.T.P. Burt, The Tort Liability of
Local Government Bodies (1971) 10 U.W.A.L.Rev. 99, 106-111. For an excellent
summary of the case law, see Fleming, supra, note 2, 361-5. Cf. the remarks
of Salmon J. in A.G. v. St. Ives R.D.C. [1960] 1 Q.B. 312, 323.
.16 Gorringe v. Transport Commission (1950) 80 C.L.R. 357.
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
brought about by gradual deterioration or sudden but recurring
defects. 111
More important, at least in Australia (one of the few jurisdic-
tions in which the highway rule survives at all’ 18) is the control by
virtue of title which the authority has in the highway surface.
Title means occupation and the relationship between highway
authority and road user should be regarded as one between occupier
and entrant, as of right. Uncertain as the relevant standard of care
may be, especially in Australia, 9 there is no doubt that as an
occupier such authority would be liable for failure to remove a
known danger, 20 and probably a danger whose existence was not
but should have been known.’ 12 There is no material difference
between a decayed tree which falls on a parked car and one which
falls on a passing car. Yet in Bretherton v. Hornsby Shire” the
former was said to give rise to no liability while in Vale v. Whid-
don 23 the defendant authority was held liable, the reason being
that the relevant section of roadway in Vale v. Whiddon ran through
a public park and, although it joined two sections of public high-
way, it was not itself a “public road”. 24 Thus the defendant was
not entitled to the protection afforded to a highway authority.
Judicial uneasiness with the immunity rule is evidenced by
various attempts to confine it within the narrowest possible bounds,
by stretching the concept of misfeasance,’2 5 by distinguishing arti-
ficial structures from the roadway proper, 2 6 or by endowing split
11* Ibid.
118 It has been abolished in most Canadian provinces and in England. See
Fleming, supra, note 3, 362.
119 In England the entrant as of right has been equated with the licensee
(Pearson v. Lambeth Borough Council [1950] 2 K.B. 353). In Australia,
judicial opinions have fluctuated, granting the entrant as of right protection
which has varied between something better than that owed to the licensee
(Burrum Corporation v. Richardson (1939) 62 C.L.R. 214, 229-30 per Latham
CJ.) and something better than that owed to the invitee (Aiken v. King-
borough Corporation (1939) 62 C.L.R. 179; Pettiet v. Sydney Municipal Council
(1936) 10 A.L.J. 198). For a fuller discussion, see W.L. Morison, R.L. Sharwood
and C.S. Phegan Cases on Torts 4th ed. (1973), 577-9.
120 This would be so even where the plaintiff is treated as a licensee.
121 Since it is Australian law which is now largely relevant.
12 (1963) 63 S.R. 334 (N.S.W.).
123 (1950) 50 S.R. 90 (N.S.W.).
124Mr Justice Burt has suggested that the only “rational” explanation for
the retention of “the immunity is the inability of a highway authority to close
a public road. See Burt, supra, note 115, 109-11.
m Taylor v. Commissioner for Main Roads (1945) 46 S.R. 117 (N.S.W.).
326 Bathurst, v. Macpherson (1879) 4 App.Cas. 256; Municipality of Picton
v. Geldert [1893] A.C. 524.
McGILL LAW JOURNAL
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personalities upon local authorities so that the immunity only
applies when the authority is acting in its capacity as a highway
authority and not in some other capacity such as sewerage and
drainage authority.12
Special as it may be, the nonfeasance rule, as applied to highway
authorities, conspicuously demonstrates its difficulty of application
and the unfortunate complications which result from attempts to
circumvent it.
d) Nonfeasance and the planning/operational distinction
That nonfeasance is susceptible to verbal gymnastics, whatever
the context, is amply demonstrated by remarks in the case of
Schacht v. Province of Ontario.12 The Ontario Court of Appeal
upheld a claim based on the alleged negligence of two policemen
who failed to take appropriate measures to warn traffic before
leaving the scene of an accident in which detour signs directing
traffic around an excavation had been knocked over. Delivering the
judgment of the Court, Schroeder J.A. stated that:
…
the passivity of these two officers … may appear to be nothing
more than nonfeasance, but in the case of public servants subject not
to a mere social obligation but to what I feel bound to regard as a legal
obligation, it was nonfeasance amounting to misfeasance.129
It has already been suggested that a more appropriate solution
to the problems associated with the judicial control of administra-
tive action can be found in the planning/operational distinction. To
subject these problems to that distinction would not mean that
all cases in which nonfeasance has protected the public authority
in the past would be decided in the plaintiff’s favour. If the
experience in the United States can be relied upon as a guide
there will continue to be many examples of nonfeasance of the
planning variety. 130 However, there are indications that some of
the best known illustrations of nonfeasance providing immunity
from liability will be subjected to re-examination.
It has been
decided, for example, that a city authority can be liable for failure
to supply water to fight a fire.’3 ‘
-27 Buckle v. Bayswater Road Bd (1936) 57 C.L.R. 259; A.G. v. St. Ives
R.D.C., supra, note 115.
1 28 (1973) 30 D.L.R. (3d) 641.
129 Ibid., 651 (italics added).
1w See generally, K.C. Davis, Administrative Law Treatise (1958) vol.3,
13 1 Veach v. City of Phoenix 427 P. 2d 335 (1967). Contra earlier decisions to
the contrary: Moch v. Rensselaer Water Co. 159 N.E. 896 (1928); Steitz v.
City of Beacon 64 N.E. 2d 704 (1945). Cf. Slutsky, supra, note 35, 661.
para25.14.
1976]
PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
625
It is not suggested that adoption of the planning/operational
distinction will free this area of the law from difficulty. Already
American courts have produced borderline decisions, which are
difficult to reconcile. 13 The virtue of the approach lies, not so
much in its simplicity of application,’ 3 but in the fact that it comes
closer to a realistic definition of the proper limits on judicial
control of administrative action in the context of damage suits
than does the more artificial misfeasance/nonfeasance distinction.
III. THE ROLE OF STATUTES
Conspicuous attention has been given to relevant statutory
provisions in the most recent English cases on public authority
liability in negligence. In Ministry of Housing v. Sharp3
statutory
provisions were relevant to the nature of the certificate issued by
the land registry, the respective functions of the defendant per-
sonnel, and the class of persons for whose protection the certificates
were intended. It is true that these matters received most attention
in the Court of Appeal in the context of the claim for breach of
statutory duty. However, it is likely that they were borne in mind
when their Lordships came to discuss the liability in negligence
of the clerk who had failed to discover the compensation notice
before issuing a certificate of search. 35
In the course of his judgment in the Dorset Yacht Co. case, Lord
Diplock examined relevant provisions of the Criminal Justice Act,
1961136 and the Borstal Rules which distinguished the different func-
tions of the Home Secretary and supported the need for restricting
the scope of the duty to prevent escape.’37 Similarly, in his explana-
132 Davis, supra, note 130 and especially the 1970 Supplement, supra, note
70, 845-60.
’33 In this respect it probably presents as many difficulties as the mis-
feasance/nonfeasance dichotomy. Cf. supra, notes 66-69.
3 4 Supra, notes 16-20.
1
135 To describe the case as not strictly a negligence case, “but one involving
breach of statutory duty” (C.R. Symmons, The Duty of Care in Negligence:
Recently Expressed Policy Elements (1971) 34 M.L.R. 528, 540) is an over-
simplification. The plaintiff’s action included both breach of statutory duty
and negligence. Since the majority in the Court of Appeal did not consider
that the statutory duty, if it existed, imposed strict liability, the case was
ultimately resolved as one based on common law negligence.
1369-10 Eliz. II, c.39. E.g., s.43(l)(c) defining Borstal institutions and s.47
giving the Home Secretary wide power to make rules concerning persons
detained in’ Borstal Institutions including their temporary release.
13t Supra, note 49, 1064-6.
McGILL LAW JOURNAL
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tion of the basis of the council’s duty in Dutton’s case, Lord Denning
M.R. quoted the council’s own by-laws. 138
As Ministry of Housing v. Sharp illustrates’3 9 some confusion
between liability in negligence and for breach of statutory duty is
inevitable where so much attention is given to statutory provisions.
This confusion is the result of general uncertainty surrounding the
concept of breach of statutory duty4″ and the reluctance of Cana-
dian courts in particular to commit themselves to any one view of
the use to be made of conduct-proscribing statutes.’ 4 ‘ On the one
hand is the view that such statutory provisions supply a standard
of care to replace that of the reasonable man in an otherwise
ordinary negligence claim; 42 on the other hand is the view that
an action for breach of statutory duty is separate and distinct
from negligence, 143
thus allowing for the possibility of liability
without fault if the statute so dictates. 44
To a large extent, the use made of statutes in these cases trans-
cends this endless debate. Most of the cases concerned with the
nature of breach of statutory duty involve a -defendant’s failure to
comply with a course of conduct dictated by the statute.1 ” In the
138 [1972] Q.B. 373, at 391-2 and it was a difference in the relevant statutory
provisions which made it possible to distinguish Dutton in McRae v. City of
White Rock, supra, note 39.
‘3 9 Supra, note 135.
4 0 For general discussion of the subject see A. Linden, Canadian Negligence
3
Law (1972), Ch.4, 108-115, 156-9; C. Phegan, Breach of Statutory Duty as
a Remedy Against Public Authorities (1974) 8 U.of QueenslandL.J. 158.
141 Linden, ibid.
142 This view is generally understood to represent the “negligence per se”
doctrine applied in the United States. See F.V. Harper and F. James, The
Law of Torts (1956), vol.2, 997; W.L. Prosser, Law of Torts 4th ed. (1971), 197-
203. But the uncertainty does not stop here, since the statutory standard
may be either conclusive or constitute a rebuttable presumption. Linden,
supra, note 140, 110-114.
143The view to which English and Australian courts subscribe, (Fleming,
supra, note 2, 122; Phegan, supra, note 140) but not without exception, e.g.,
Lord Reid in the Dorset Yatch Co. case, discussing Greenwell v. Prison Corn-
missoners [1970] A.C. 1004 at 1031 referred
to the prison authorities’
“breach of statutory duty”.
144 A possibility not excluded in some Canadian decisions, e.g., Ostash v.
Sonnenberg (1968) 67 D.L.R. (2d) 311; Cunningham v. Moore [1972] 3 O.R.
369, 380.
145 Such as the duty to provide and maintain indicator markings near fire
plugs (Dawson & Co. v. Bingley U.D.C. [1911] 2 K.B. 149), to keep fire hydrants
in effective working order (MacEachern v. Pukekohe Borough [1965] N.Z.L.R.
330) or to remove snow from the sidewalk (Commerford v. Board of School
Commissioners of Halifax [1950] 2 D.L.R. 207).
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PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
present context the role of statutes is more varied and, if it is
possible, even more complex. Statutes are examined not only for
the purpose of identifying specific responsibilities 4 6 but also as a
means of clarifying the functions of a particular body or officer
of such body,147 and as a tangible expression of public policy. 48
What must be encouraged is an awareness that public authority
liability in negligence not only calls for the introduction of entirely
new determinants 49 of duty but a broader and more subtle use
of already familiar influences such as relevant statute law.
IV. THE ROLE OF PUBLIC POLICY
In one sense public policy has a fundamental role to play in all
questions of tort liability. Professor Leon Green in his pioneering
article chose to describe tort lawas “public policy in disguise”.150
Text writers and other commentators, particularly in the United
States, have injected into their writing a considerable amount of
public policy analysis. The courts of the Commonwealth, unlike
their American counterparts, have been slow to adopt this outlook.
Express judicial recourse to public policy as a basis for a decision
has been conspicuously rare.’ 51 It is therefore of particular signi-
ficance to the present discussion that, with few exceptions 15 it is
in the field of public tort liability that English and other Common-
wealth courts have been prepared to address themselves explicitly
to “public policy”.10
Public policy has been advocated in tort law to promote the
equitable distribution of the loss resulting from injury. The liability
146 As in Ministry of Housing v. Sharp, supra, notes 134-5.
147 And sometimes thereby providing the basis of a positive duty which
would not exist independently of the statute e.g., to control another’s conduct,
Home Office v. Dorset Yatch Co. Ltd, supra, note 49 or replace a warning
sign O’Rourke v. Schacht (1974) 55 D.L.R. (3d) 96.
148Supra, notes 136-7.
149 Supra, part II, at pp.613-625.
150 Tort Law Public Law in Disguise (1959) 38 Texas L.R.1, 257.
151The most celebrated exception has been Lord Denning M.R. in the
152 The resort to policy in the case of Rondel v. Worsley [1969] 1 A.C. 191
to defend the immunity from liability of a barrister in the preparation and
presentation of a court case.
English Court of Appeal.
13C.R. Symmons, The Duty of Care in Negligence (1971) 34 M.L.R. 394, 528
may be suggesting otherwise. However, apart from Rondel v. Worsley, ibid.,
and S.C.M. (U.K.) Ltd v. W.J. Whittal & Sons Ltd [1971] 1 Q.B. 339 (a decision
in which Lord Denning was prominent) the third decision to which he gives
the most attention is the Dorset Yacht Co. case.
McGILL LAW JOURNAL
[Vol. 22
of public authorities in this context raises unique and familiar pro-
blems. To take the extreme case of an action against a fully re-
presentative and revenue-collecting government, there is no other
situation which offers the prospect of so complete a distribution
of loss amongst the community as a whole.154 However, loss borne
by a public corporation or local authority working on a limited
budget cannot be spread so widely.15r Although the role of insurance
is much more limited than it is in the private sector, its presence
in the private sector has implications for the public sector. Pro-
fessor Green gives the example of an action against a water sup-
plying authority for failing to maintain adequate pressure to ex-
tinguish a fire.156 The ultimate cost to ratepayers of maintaining
higher water pressure (or paying for the consequences if this is
not done) must be balanced against the cost of indemnity insurance
to property owners.15 7
Another familiar control device reflects the concern that the
ultimate cost of allowing unrestricted recourse to damages may
reach a point where it is not justified by the risk involved. So in
Dorset Yacht, Lord Diplock confined the duty owed by the Borstal
officer to persons:
… whom he could reasonably foresee had property situate
vicinity of the place of detention …. 168
Where a public authority is defendant questions of public
policy may be evident in the form of legislative policy expressed
or implied in statutes which govern the authority’s conduct.119
The planning/operational distinction advocated above6 0 is an at-
tempt to give effect to the broad policy that discretionary activity
should not be subjected to criteria of liability in negligence.
in the
Finally, there may be cases in which public policy dictates that,
for reasons quite independant of the planning/operational distinc-
tion, a public body should be placed entirely outside the reach of
the law because of the nature of the governmental function in which
it is engaged. The public interest is identified with government
154 Davis, supra, note 130, 5034. Cf. Herrington v. British Railways Board,
supra, note 4.
155 East Suffolk Rivers Catchment Board v. Kent, supra, notes 2 and 83.
Ganz, supra, note 9, 88-9.
15 See cases referred to supra, note 131.
157 Supra, note 150, 8.
15 8 Supra, note 49, 1070-71.
159 Supra, note 148.
10 Supra, part II, pp. 613-625.
19761
PUBLIC AUTHORITY LIABILITY IN NEGLIGENCE
action unencumbered by the threat of a suit for damages.’ An
uncomplicated example can be found in the decision of the High
Court of Australia in Shaw Savill and Albion v. The Common-
wealth’6 in which it was stated that no duty of care is owed to a
private individual by a naval vessel engaged in actual operations
against the enemy. But the overriding public interest assumed in
that case, and reflected in the government activity of conducting
a war, cannot be regarded as typical. It is the one situation where
private interests are most easily discounted.
It is trite to observe that public policy is relevant to tort liability
in this or any other context. But as in the use to be made of
statutory provisions, its role in public authority liability is an
extended and especially important one.
181 An argument attributed to the Home Office in the Dorset Yatch Co.
case by CJ. Hamson [1969] 27 Camb.LJ. 273, 276.
162 (1940) 66 C.L.R. 344.
