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tort law: stovin v wise

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It's incredibly tiresome debating people who respond by just quoting massive walls of text.

But to quote back what you just quoted: "(1) ‘it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act’, "

That says precisely what I was saying.

edit: I'm going to stop this now until I get chance, as I said, to post something of real substance, this is just stupid.

Also, if you want to argue by authority use better authority. I cited Clerk and Lindsell. Clerk and Lindsell > the first casebook that comes up on google.

(edited 12 years ago)

Reply 21

ktwolves

HAhahhhhhhahhaha My beef: See Above - The case concerned statutory discretion which excluded a duty of care being owed even in principle.

Stovin v. Wise:
judgment reversed by House of Lords
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc. R.I.C.S.

If, on land which is adjacent to a highway maintainable at public expense, a state of affairs exists which is a hazard to users of the highway, and there are statutory powers which would enable (but not compel) the highway authority to order the landowner to remove the hazard, failure by the authority to use those powers (which are not available to anyone except the authority) does not constitute a breach of a duty of care so as to make the authority liable in damages for negligence in respect of harm suffered by a user of the highway in an accident wholly or partly attributable to that hazard.

It was about breach, is it not?

(edited 12 years ago)

Reply 22

Jilly.0

Timmona, isn't wilsher still the authority for medical negligence cases, that material contribution to risk is not allowed to impose liability and there has to be material contribution to the injury?

Also, do you guys feel that Connor, the latest test for public authority, is an omissions case so it has overturned Gorringe?

Reply 23

ktwolves

Special Duty problems in Stovin v Wise
1. Omission - No liability for omission for public body
Lord Hoffman: Omissions, like economic losses are a notorious category of conduct in which Lord Atkin’s general principle in Dongahue is of little help. ..It is one thing for the law to say that a person who undertake some activities to take reasonable steps not to cause damage to another. It is another thing for the law to require that a person who is doing nothing in a particular situation shall take steps to prevent another from suffering damage…
a. In political terms, it is less of an invasion of individual freedom.. to require him to consider the safety of others in his actions..
b. A moral version of this point may be called “why pick me” argument…
c. In economic terms….no justification for requiring a person who is not doing anything to spend money on behalf of someone else..

2. Exercise of Statutory Powers, exception
Lord Hoffman: In addition to the decision to the public body being unreasonable, there must be exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.
Barrett v Enfield: ..there can be liability if the decision is so unreasonable as to take it out of the of that discretion….so long as..there are other special circumstances justifying a private right of action.

3. Judicial Review? Operational act?
Unreasonable decision: This entails whether there was an obligation in the statutory structure to pay compensation to individuals rather than to be dealt with by public law remedies. If discretion is unreasonable, it depends if the decision tends more to the “operational” end of the spectrum, there can be liability so long as it is fair and reasonable to impose a duty (Barrett v Enfield). Lord Slynn: This does not mean if an element of discretion is involved…common law negligence is necessarily ruled out.

(edited 12 years ago)

Reply 24

Jilly.0

i think for omissions, the latest test is gorringe..better stick with that

Reply 25

ktwolves

Original post by Jilly.0

i think for omissions, the latest test is gorringe..better stick with that

Thanks

Reply 26

TimmonaPortella

Ok, I'm aware that this is from ages ago but I've just had chance to look back through public authorities.

Stovin v Wise concerned the question whether a duty of care could arise simply by virtue of the existence of a public power, here the power to clear the obstruction. The result of the case was that it could not. For it to do so it would have to be irrational in the public law sense for the defendant to fail to exercise the power, and there would have to be some special reason why the policy of the act required the imposition of a duty to pay compensation for its non exercise in such situations. Deciding to do the act did not constitute an assumption of responsibility to do it. There was therefore no liability in negligence for its failure to do it. As to the quotation above, note the use of language: "breach of a duty of care"; nowhere is it said in that passage that a duty of care was found.

The case can be distinguished from Kent v Griffiths on the grounds that there was in that case, as has been pointed out above, a proper assumption of responsibility through the answering of the call. This can be contrasted with Capital and Counties v Hampshire and Alexandrou v Oxford. And see now X and Y v Hounslow.

(edited 11 years ago)

Reply 27

ktwolves

Notes on Stovin v Wise
Omission: A duty of care arising from action and omission as a matter of law in the circumstances alleged the defendant owes a duty of care to the claimant. [Lord Atkins, Donaghue v Stevenson 1932]. The rule is simply this you must not injure your neighbour, either through action or omission, if the injury is foreseeable, Omission may be interpreted as a negligence act.
On the facts of Stovin v Wise, omission was not disputed, but defendant is however only prima facie liable, a further consideration by the court in needed, i.e. to consider whether there are any other consideration which ought to negative, or to reduce or limit the scope of duty or the class of person to whom it is owed or the damages to which it is owed …[Lord Wilberforce, Anns v Merton 1977], which was further refined as “the situation should be what the court consider it fair, just and reasonable that it should impose a duty of care” [Caparo v Dickman 1990]. The case of Stovin v Wise, on the facts, deals with the general issues for omissions.
Private Right of Action, keeping public and private law separate: The case also touches on how Public bodies may exercise its statutory powers in law (not on the facts). If the decisions are wholly unreasonable, it is simply a matter of judicial review, corrected by public law remedies. Question arises whether there is any private right of action to someone harm or not benefited from decisions of the public body. A distinction between policy and operation matters (discretion) was suggested in Anns case but it is not sufficient to provide a touchstone of liability. Thus, in Stovin v Wise, Lord Hoffman says in additional to the decision being unreasonable, there must be exceptional ground to hold that compensation to individual is required because power was not exercised for the benefit of the individual, in other words whether for example there was statutory structure envisage payment to individuals rather than leaving it to be dealt with my public bodies.

Reply 28

TimmonaPortella

I don't think that the case is really worth citing beyond its consideration of positive duties to act arising from the existence of a statutory power, so I shall say nothing on Hoffmann's criticism of the policy/operations distinction. On that see Phelps, Barrett, Carty v Croydon, X, Rowling v Takaro.

The final paragraph of your notes is correct.

Your second paragraph is problematic. There is no longer a general prima facie duty of care which can be defeated by any other consideration as was considered in Anns. This approach was not refined in Caparo; it was abandoned, in favour of incrementalism. The court will first look at whether there is an analogous existing duty. It will consider whether a duty can be found in the present case by the extension by analogy of that duty. It will then look to see whether such an extended duty would fit the three factors identified. That said, in some novel duty situations courts have seemed willing just to apply the Caparo factors straight out, e.g. Watson v British Boxing Board of Control (where "policy" was considered as a separate, fourth limb, as it is occasionally).