Jersey Unreported Judgments

[2003]JRC150

royal court

(Samedi Division)

 

3^rd September 2003

 

 

 

 

Appeal by the defendant Committee against refusal by the Master on 17th February 2003 to strike out the order of justice on the grounds that it disclosed no reasonable cause of action - liability of the Committee for the non-repair of a main road.

 

 

Advocate D J Benest for the Defendant

The Plaintiff did not appear and was not represented

 

judgment

bailiff:

1.        This is an appeal by the defendant ("the Committee") against a decision of the Master on 17^th February 2003 refusing to strike out the order of justice on the grounds that it disclosed no reasonable cause of action.  It raises an interesting point of law as to the liability of the Committee for the non-repair of a main road.  Unfortunately, although the plaintiff was represented before the Master by Advocate R J Michel acting under a legal aid certificate, he has not appeared or been represented in this appeal.  I understand that, although Advocate Michel would of course represent him under the legal aid certificate, the plaintiff was concerned that, in the event of a successful appeal, he would be ordered to pay the costs of the appeal and of the hearing before the Master.  He sought to reduce the prospect of that occurring by not appearing in the appeal.  It is unfortunate that this is so but I have had the benefit of reading the detailed skeleton argument submitted by Advocate Michel to the Master and the authorities upon which he relied. 

The background

2.        According to the plaintiff's order of justice he was walking along the pavement in Stopford Road, St Helier on 2^nd September 2001 when he tripped over a protruding paving slab and injured himself.  He asserts that the Committee was under a duty to maintain Stopford Road, as a main road, and that the accident was caused by the Committee's negligence in failing to maintain the highway and allowing the paving slab to be loose, uneven etc.  For the purposes of a striking out application on the grounds that there is no reasonable cause of action, the factual allegations must be taken to be well founded.  The order of justice does not distinguish between a breach of statutory duty and a breach of a common law duty of care but I shall assume in the plaintiff's favour for the purposes of this application that both are alleged.

3.        In its pleadings the Committee does not admit to being under a duty to repair the highway but, for the purposes of this application, the Committee accepts that the Court should proceed on the basis that it is under such a duty.  The basis of the Committee's application to strike out is that a breach of the Committee's statutory duty to repair the highway does not give rise to a private law cause of action on the part of someone who suffers damage as a result of the breach.  It also contends that there is no common law duty of care on the part of the Committee in respect of repair of the highway. .

4.        The Master, having recited the parties' contentions referred to the dictum of Lord Browne-Wilkinson in connection with striking out applications in X (Minors) -v- Bedfordshire County Council (1995) 3 WLR 152 at 174:-

"Actions can only be struck out under RSC Ord 18 r.19 where it is clear and obvious that in law the claim cannot succeed.  Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts.  But I agree with Sir Thomas Bingham M R (1994) 3 WLR 853, 865 that there is nothing inappropriate in deciding on these applications whether the statutes in question confer private law rights of action for damages; the answer to that question depends upon the construction of the statutes alone. 

Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases.  There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist.  But in other cases the relevant facts are not known at this stage.  For example, in considering the question whether or not a discretionary decision is justiciable, the answer will often depend on the exact nature of the decision taken and the factors relevant to it.  Evidence as to those matters can only come from the defendants and is not presently before the court.  I again agree with Sir Thomas Bingham M R that if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered."

5.        The Master concluded that it was not appropriate to strike out the order of justice without ascertaining the relevant facts by letting the matter go to trial.  With respect to the Master, I do not agree.  It seems to me that the question of whether there is a private cause of action (whether for breach of statutory duty simpliciter or for breach of a common law duty of care) for a failure by the Committee to repair the highway is a point of law.  It is to be assumed against the Committee that it breached its duty to repair the highway in the manner alleged by the plaintiff and was negligent in so doing.  The exact manner in which it was negligent or breached its duty is not relevant to the decision on the point of law.  It is therefore in the interests of justice to determine this issue at this early stage rather than letting the parties incur what may be unnecessary cost in bringing (or defending) an action to trial.

The position in England

6.        Although it may seem unusual, I think it is convenient to start by referring to the position in England.  At common law there was a duty upon the inhabitants at large to repair the highway.  That duty could be enforced by way of indictment but there was no liability upon the inhabitants to pay damages to any individual who suffered damage as a result of a failure to repair the highway.  Such an individual had no cause of action.  That position was maintained when the duty to repair the highway was transferred by statute to highway authorities.  There was always a liability for acts (i.e. misfeasance).  Thus if a highway authority decided to repair the highway but did so negligently (e.g. by creating a hole and then leaving it unguarded) a cause of action on the part of an individual who suffered damage as a result would lie.  The law drew a distinction between acts (misfeasance) and omissions (non-feasance).  It was only in the latter case that there was no private cause of action against a highway authority.  It was not until 1961 that the position was changed by statute.  The Highway (Miscellaneous Provisions) Act 1961 abrogated the rule exempting highway authorities for non-feasance but introduced a statutory defence if the authority could show that it had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action related was not dangerous for traffic. 

7.        Mr Benest referred me to the Report of the Law Reform Commission of British Columbia on `The tort liability of public bodies` (LRC 34/1977).  It would seem from the report that this rule of English law was applied generally in the Commonwealth (e.g. Australia, New Zealand).  The one exception appears to be in British Columbia where the Supreme Court of Canada held in the case of the City of Vancouver -v- McPhalen that the statute imposing a duty to repair on the city of Vancouver did allow for a private cause of action for non repair of the highway against the city.  The Supreme Court held that there was no evidence that the duty imposed upon the city of Vancouver was one which had been transferred from the inhabitants or the municipal corporation.  It was held to be an original duty with the result that the old common law exemption was not applicable.  Interestingly the effect of this decision of the Supreme Court was subsequently reversed by statute in 1955. 

The position in Jersey

8.        It seems likely that, historically, the duty to repair the roads of the island lay with the parishes in which the roads fell.  Certainly the Code of 1771, under the heading "Reglements pour la reparation des chemins" expressed such a duty.

9.        The position remained essentially unchanged until the Loi (1914) sur la Voirie  ("the 1914 Law").  As originally enacted Article 1 of that Law provided that the States should draw up a list from time to time "des Chemins Publiques qui seront considérés voies de grande communication ....." and contribute an annual sum towards the repair of such roads in each parish.  The 1914 Law also set up roads committees in each parish to supervise the repair and upkeep of roads in that parish. 

10.      Article 1 was repealed and replaced by new Articles 1 and 1A in 1941.  They provided as follows:-

Article 1

" (1) Les États auront l'administration directe des grandes routes et tous les frais de construction, entretien ou autres frais seront à leur charge.

(2) Les chemins vicinaux resteront comme par le passé à la charge des différentes paroisses.

(3) ............

(4) ...........

Article 1A

Les États nommeront un Comité d'Administration des Grandes Routes autorisé à prendre toutes les mesures nécessaires pour l'entretien convenable des grandes routes."

11.      It is clear from the language of the statutue that this was simply a transfer of the duty to repair main roads from the parish to the States.  There was no alteration in the nature or extent of such duty. 

Breach of statutory duty

12.      The first question for decision is whether a failure by the Committee to repair the highway in accordance with its duty under Article 1(1) of the 1914 Law gives rise to a private cause of action on the part of an individual who has suffered damage as a result.  Mr Benest argues that, for the same reason as applied in England and elsewhere in the Commonwealth, there is no such cause of action.  Mr Michel, before the Master, argued that, although in matters of tort, Jersey law tended to follow English law, there was no reason to do so in this case, particularly as almost all jurisdictions had now reversed the old position by statute and had included a private cause of action for non-repair of the highway.

13.      The principles applicable in establishing whether breach of a statutory duty gives rise to a private cause of action were authoritatively stated by Lord Browne-Wilkinson in X (Minors) -v- Bedfordshire CC where he said the following:-

"The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult.  The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action.  However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.  There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators.  If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to consider.  If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intend to be enforceable by those means and not by private right of action: Cutler -v- Wandsworth Stadium Ltd (1949) A.C. 398; Lonrho Ltd -v- Shell Petroleum Co. Ltd (No. 2) [1982] A.C. 173.  However, the mere existence of some other statutory remedy is not necessarily decisive.  It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy.  Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves -v- Wimborne (Lord) [1898] 2 QB 402.

Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it has been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty.  Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.  Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, i.e. bookmarkers and prisoners: see Cutler's case [1949] 1 A.C. 298; Reg -v- Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58.  The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

14.      The specific position in relation to non-repair of the highway was referred to by Lord Hoffman in Stovin -v- Wise (1996) 3 WLR 388 at 413:-

"This can be seen if one looks at cases in which a public authority has been under a statutory or common law duty to provide a service or other benefit for the public or a section of the public.  In such cases there is no discretion but the courts have nevertheless not been willing to hold that a member of the public who has suffered a loss because the service was not provided to him should necessarily have a cause of action, either for breach of statutory duty or for negligence at common law.

There are many instances of this principle being applied to statutory duties, but perhaps the most relevant example of the dissociation between public duty and a liability to pay compensation for breach of that duty was the ancient common law duty to repair the highway.  The common law imposed this financial burden upon the inhabitants of the parish.  But it saw no need to impose upon them the additional burden of paying compensation to users of the highway who suffered injury because the highway surveyor had failed to repair.  The duty could be enforced only by indictment.  This rule continued to apply when the duty to maintain was transferred by statute to highway authorities and was only abolished by section 1 of the Highways (Miscellaneous Provisions) Act 1961.  Likewise in Hill -v- Chief Constable of West Yorkshire [1989] AC 53 it was held that the public duty of the police to catch criminals did not give rise to a duty to a member of the public who was injured because the police had negligently failed to catch one.  The decision was mainly based upon the large element of discretion which the police necessarily have in conducting their operations, but the judgment excludes liability even in cases in which the alleged breach of duty would constitute public law irrationality.

In terms of public finance, this is a perfectly reasonable attitude.  It is one thing to provide a service at the public expense.  It is another to require the public to pay compensation when a failure to provide the service has resulted in loss.  Apart from cases of reliance, which I shall consider later, the same loss would have been suffered if the service had not been provided in the first place.  To require payment of compensation increases the burden on public funds.  Before imposing such an additional burden, the courts should be satisfied that this is what Parliament intended."

15.      In my judgment there is no private cause of action for breach of the statutory duty by the States (or for that matter the parishes) to repair the highway.  I would summarise my reasons as follows:-

(i)        I can discern no intention on the part of the legislature that this should be so.  The duty to repair would seem to be a typical example of the type of duty envisaged by Lord Browne-Wilkinson in the passage referred to above, namely one which, although in fact providing protection to those individuals particularly affected, is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.  In this case the relevant provision of the Law is intended to deal generally with the provision of main roads for the benefit of the public at large so as to enable them to get from one place to another and aid the general commerce and life of the island community.  Its purpose was not to provide to individual members of the public a right to sue for a failure of repair. 

(ii)       The researches of counsel have failed to find a single case in Jersey where there has been held to be such a cause of action.  The States must be assumed to have been aware in 1941 (when amending the 1914 Law to transfer responsibility for main roads from the parishes to the States) of the long established rule of common law (which appears to have been followed generally throughout the Commonwealth) that there was no such cause of action.  One would therefore have expected provision for such a cause of action should the States have wished to create one. 

(iii)      The reasons summarised by Lord Hoffman which underlay the exemption from liability in England would seem to be equally applicable in Jersey.  There is nothing distinctive about Jersey in this regard.  In particular, it is one thing to provide a service at public expense; it is another to require the public to pay compensation when a failure to provide the service has resulted in loss.  To require payment of compensation increases the burden on public funds.  Before doing so the Court should be satisfied that this is what the legislature intended. 

(iv)      Lord Browne-Wilkinson explained that one of the indicators as to whether there was a private cause of action for breach of statutory duty was whether any other remedy was provided by the statute.  In the 1771 Code there was provision for the Constable and Centeniers to bring the inspectors of a vingtaine before the Royal Court if the inspectors had failed to carry out their duty.  There was therefore a mechanism for enforcing performance of the duty to repair by the parishes.  It is true that the 1941 amendment to the 1914 Law provides nothing similar in respect of the obligation of the States to maintain main roads but, as described earlier, it is clear that the amendment merely transferred the existing duty from the parishes to the States; it did not alter the nature or extent of that duty. 

(v)       The duty to repair is expressed in unqualified terms.  It is an absolute duty to maintain.  The position was summarised by Lord Hoffman in Goodes -v- East Sussex County Council (2000) 1 WLR 1356 at 1361:-

"The duty is not absolute in the sense that the road has to be perfect.  As Diplock L J explained in the later case of Burnside -v- Emerson (1968) 1WLR 1490, 1497, the duty is to put the road: "in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all season of the year without danger caused by its physical condition."

But the highway authority has an absolute duty to maintain the highway in a state which satisfies this objective standard.  It must levy whatever rate is necessary for the purpose.  If the condition of the highway falls short of the statutory standard, the highway authority is in breach of duty.  It is no answer that it took all reasonable care or that its resources were insufficient." 

It follows that to impose a liability for breach of statutory duty simpliciter would impose liability even where the Committee had taken all reasonable care to repair the highway or even where it had not been able to do so because of financial constraints.  These factors point against the existence of a private cause of action. 

(vi)      In essence I see no reason to reach a different conclusion in relation to Jersey from that reached in England and most Commonwealth jurisdictions, namely that there is no liability for breach of statutory duty arising from the non-performance of the duty to repair the highway.  I appreciate that times have moved on and that it may be argued that an exemption from liability of this nature is unsatisfactory in the present day.  I will consider that aspect when turning to consider whether the Court should find a common law duty of care.

Common law duty of care

16.      Having decided that there is no private cause of action for breach of statutory duty simpliciter, the normal consequence would be that the Court should also decline to find a parallel common law duty of care on the part of the Committee.  As Lord Hoffman said in Stovin at 414:-

"The same is true of omission to perform a statutory duty.  If such a statutory duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.  It will often be foreseeable that loss will result if, for example, a benefit or service is not provided.  If the policy of the Act is not to create a statutory liable to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care."

17.      Mr Michel argued before the Master that the Court should follow the approach of the Guernsey Court of Appeal in Morton -v- Paint (1996) 21 Guernsey Law Journal 36 in developing the common law notwithstanding that such development had only been achieved in England by means of statutory reform (in that case the Occupier's Liability Act 1957).  Morton has been followed in Jersey in the case of Knight -v- Thackeray's Limited (1997) JLR 279. 

18.      In my judgment the circumstances in Morton were very different to those in the present case.  I do not think that it is open to the Court to develop the law to find a common law duty of care owed by the Committee (and the parishes) to individual road users.  My reasons are as follows:-

(i)        Morton was concerned with rights between private individuals.  It was not concerned with the liability of a public authority for failure to fulfil a statutory duty.  The courts have always been active in developing the law of tort in relation to duties owed by one individual to another; they have been slower to become involved in the obligations of public authorities.

(ii)       The court in Morton was much comforted by the fact that, in certain parts of Australia, the courts had developed the common law so as to abolish the distinction between the duties owed by occupiers to licensees and invitees (the point at issue in that case) notwithstanding that in England this had only been achieved by statute.  Furthermore it drew comfort from the fact that the courts in England had developed the common law in relation to the duty owed by occupiers to trespassers.  If the courts could develop the law in relation to the duty owed to trespassers, why not the duty owed to licensees or invitees?  The position is very different here.  So far as the Court is aware England and all the Commonwealth jurisdictions have achieved reform of the exemption of highway authorities from liability for non-repair by statute rather than by judicial decision.

(iii)      The exemption from liability for non-repair was abolished in England as long ago as 1961.  Since then the States have amended the 1914 Law on four occasions namely 1971, 1972, 1973 and 1995.  Yet they have made no amendment in this respect.  As Lord Lowry said in C -v- DDP (1996) 1 AC 1 at 28 (in a passage relied upon by the Guernsey Court of Appeal in Morton):-

"Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated whilst leaving the difficulty untouched."

(iv)      The issue is clearly one which may have significant resource implications for the States (in respect of main roads) and the parishes (in respect of minor roads).  In the event of liability for non-repair, they may in future spend money on repairs which they have hitherto spent in other areas.  The allocation of financial resources is not a matter suitable for judicial decision.  Reform of such matters should be dealt with by the legislature, which can consider all the implications and consult widely.  Some of the issues which may arise in considering whether to remove the exemption for non-repair were summarised by the Law Reform Commission of British Colombia (referred to earlier).  Relevant passages are to be found at pages 16 and 17:-

"The Commission has concluded, however, that the policy of the Rule itself requires re-examination.  That policy seems originally to have been dictated by the fact that highway authorities were notoriously under-funded.  With insufficient revenue even to keep the highways in good repair, how, it was asked, could the authorities attempt to meet the tremendous barrage of actions which might otherwise be opened to the large multitude of travellers who use their highways? 

Is this justification for the immunity still acceptable?  While municipal governments are certainly wealthier than their 19^th century predecessors, their resources are not limitless.  An argument can still be made that while the effect of abrogating the immunity would be in the first instance to impose liability upon the municipalities, the final result would be a heavier burden of taxation for the citizens.

...................................................

 We have no doubt that enactment of our recommendations will increase the economic burden on the municipalities and may (we put it no higher) result in higher municipal taxes.  We cannot persuade ourselves, however, that this result is anything other than sensible and fair.

..................................................

At present the community no doubt benefits from the lower taxes payable by reason of the immunity and the fact that the full burden falls upon the injured plaintiff.  In our opinion, this is simply unfair.  To shift the risk of loss from the injured party to the community seems to us, then, both eminently fair and as a matter of distributive justice, likely to be productive of social benefit in the form of improved highway maintenance."

These passages all go to show that this is a topic more suitable for reform by legislative action than by judicial decision.  No doubt, that is why the statutory route has been followed in other jurisdictions.

(v)       The solution adopted in England and a number of other Commonwealth jurisdictions does not simply impose a common law duty of care to maintain the highway.  It imposes an absolute obligation but then provides for a statutory defence.  If the Court were to develop the law as suggested by Mr Michel it could only impose the former solution.  That would appear in many respects to be a less satisfactory solution from a plaintiff's point of view than the statutory solution adopted in England and elsewhere.  As Lord Clyde said in Goodes (supra) at 1368:-

"My Lords, I have no difficulty in holding that Section 41 of the Highways Act 1980 imposes an absolute duty on the highway authority.  There is no hardship in so holding since the section has to be taken along with Section 58 which provides a defence that reasonable care has been taken by the authority.  The scheme of the provisions is in its broad effect that the authority should be liable for damage caused by a failure to take reasonable care to maintain a highway, but the injured party is not required to prove the failure to take reasonable care.  It is for the authority to prove that it has exercised all reasonable care.  Such a reversal of the onus which would have been imposed on the plaintiff in an action for damages at common law is justifiable by the consideration that the plaintiff is not likely to know or be able readily to ascertain in what respects the authority has failed in its duty.  All that the plaintiff will know is that there is a defect in the road which has caused him injury and it is reasonable to impose on the authority the burden of explaining that they had exercised all reasonable care and should not be found liable." [emphasis added]

That is a further argument for leaving reform to the legislature rather than trying to proceed by development of the common law.

19.      For these reasons I find that there is no common law duty of care and the Court should not develop the law to impose one.  It follows that the plaintiff's order of justice discloses no reasonable cause of action and should be struck out. 

20.      I should add that, as experience has shown in other jurisdictions, this may not regarded as a satisfactory outcome in current times.  Individuals who suffer damage through a failure by the highway authority to repair the highway should be entitled to recompense subject to appropriate safeguards for the public or parochial purse.  I would therefore invite the relevant Committee to consider introducing appropriate legislation.  It might well find it helpful to refer the matter to the Jersey Law Commission in the first instance.  The Commission will no doubt be able to review the solutions adopted by various jurisdictions throughout the Commonwealth with a view to recommending that which is most suitable for Jersey.

Authorities

X (Minors) -v- Bedfordshire County Council (1995) 3WLR 152

Highways (Miscellaneous Provisions) Act 1961

Report of the Law Reform Commission of British Columbia: Tort Liability of Public Bodies (LRC: 34/1977)

Loi (1914) sur la Voirie

Stovin -v- Wise (1996) 3WLR 388

Goodes -v- East Sussex County Council. (2000) 1 WLR1356

Morton -v- Paint (1996) 21 Guernsey Law Journal 36.

Knight -v- Thackerays Ltd (1997) JLR 279

C-v- DPP (1996) 1 AC 1