Eastern Express Ltd v Tuitoga [2001] FJLawRp 110; [2001] 1 FLR 461 (26 November 2001)

EASTERN EXPRESS LIMITED v LEDUA TUITOGA, LAND TRANSPORT AUTHORITY, DIVISIONAL ENGINEER NORTHERN
& ATTORNEY-GENERAL

High Court Civil Jurisdiction

26 November, 2001

HBC 0014/01B

Statutory duty - duty of care of statutory authority - whether there are special circumstances for imposing a duty of care on a statutory authority – factors considered in imposing a duty of care on a statutory authority – foreseeability of its own insufficient to give rise to duty to act positively – no proximity of relationship sufficient to impose a duty - whether common law duty of care imposed on statutory authority - Roads Act ss7, 8, 9, 12, 13, 14, 15, 16

Striking out – whether claim discloses a reasonable cause of action – principles where claim based on statutory duty - whether correct remedy sought - Plaintiff should have sought judicial review rather than a claim for damages - High Court Rules O.18 r.18(1)(a)

The Plaintiff claimed damages for omissions of the Third Defendants to carry out their statutory duty to maintain public roads in the island of Vanualevu. The Third and Fourth Defendants applied to strike out a claim by the Plaintiff. The Court found that an Act relied on by the Plaintiff, namely the Public Roads Act, was non-existent. The Court noted that the powers were conferred on the permanent secretary, and not on the Third Defendants. Part VI of the Roads Act empowers, through a discretionary power, the permanent secretary to execute necessary works for roading purposes. There was therefore no positive command to impose a duty to act. The Court considered the special circumstances for imposing a duty of care on a statutory authority. These included: the subject matter of the statute; the intended purpose of the statutory duty or power; whether a concurrent common law duty might inhibit the proper and expeditious discharge of the statutory functions; the nature of the loss (whether physical injury or purely financial); the ability of the Plaintiff to protect himself; the adequacy of the public law remedies; and the presence or absence of a particular reason why the Plaintiff was relying or dependant on the authority. The Court found that the Roads Act was of general benefit to all members of the public rather than limited to a class. Even if the Court were to find a statutory duty imposed, the Plaintiff should have brought a public law action by way of judicial review rather than a private law claim for damages.

Held–(1) The absence of any right to compensation for the non-exercise of statutory powers is some indication that Parliament did not intend to impose a positive duty on the Permanent Secretary to act in any given situation or that any failure on his part to act would entitle a person affected by such inaction to compensation of any kind. The existence of a specific section in the Act dealing with compensation claims for any loss or damage sustained as a result of a positive exercise of any of statutory powers indicates that Parliament had considered and determined the matter of compensation by way of a private law claim for common law damages. There was nothing in the Roads Act obligating the Permanent Secretary to protect vehicle owners from damage to their vehicles or from the economic loss incurred in increased repair costs, occasioned by the use of their vehicles on public roads. Neither was there an implied duty to ensure the Plaintiff is able to provide a public service or operate profitably using its licences. Even if it could be successfully argued that the Roads Act imposed a positive statutory duty on the permanent secretary to repair and maintain public roads, the enforcement of such a duty lies in an action for judicial review and not in a private law claim for damages. Here, the foreseeability of damage to the Plaintiff's buses is neither irresistible or inevitable as such damage may well be caused or contributed to by numerous factors quite unrelated to any failure to carry out discretionary statutory powers.

(2) Although construction and maintenance of public roads is a legitimate (even crucial) government function, the areas in which already limited government resources are to be utilised involves government policy and priorities, which are non-justiciable matters entirely for government to consider and determine. The Courts cannot undertake that task.

Plaintiff has no reasonable cause of action either under the Roads Act or in common law negligence. Action struck out.

[Note: This case is reviewed in the Legal Lali Vol IV No. 2 p.34 December 2001]

Cases referred in Ruling

Anns v Merton London Borough Council [1977] UKHL 4; [1977] 2 All ER 492
Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 1 All ER 568
East Suffolk Catchment Board v Kent [1940] UKHL 3; [1940] 4 All ER 527
Lonrho Plc v Tebbit [1991] 4 All ER 973
Murphy v Brentwood D.C. [1990] 2 All ER 908
Sheppard v Glossorp Corporation [1921] 3 KB 132
Stovin v Wise [1996] UKHL 15; [1996] 3 All ER 801
Weldon v Home Office [1991] 3 All ER 353
X v Bedfordshire CC [1995] 3 All ER 353

Amrit Sen for the Plaintiff
Alimi O. Adamu for the Third & Fourth Defendants

26 November, 2001

RULING

Fatiaki, J

This is an application by the 3rd and 4th Defendants under Or.18 r.18(1)(a) of the High Court Rules to strike out the Statement of Claim on the ground that it 'discloses no reasonable cause of action'.

I note that th Defendanendant is sued as 'the legal representative of the Government of the Republic of Fiji' and, in the absence of any specaverments against it, need not concern the Court any further on this particular applicationation.

The particular avermenas against the 3rd Defendant however are contained in paras. 9, 10 & 11 of the Statement of Claim as follows:

'9 Third Defendant was guilty of the breach of their statutory duty under Roads Act and PubliPublic Road Act Cap.175 to maintain the public roads in the island of Vanualevu.

10. ER and or in thin the alternative the Third Defendant as the servant and agent of the Public Works Department owed a duty of care to the Plaintiffs to look after and maintain the public roads ch a standard that public slic service vehicles namely buses were able to use the same to carry passengers.

.THAT in breach ofch of duty on part of the Third Defendant, from December 1998 until to date the public roads in Labasa were an not maintained to the required standard to enable the Plaintiffs to adequately operate thee their buses to carry passengers.

Particulars

(a). Failing to put sufficient gravel or other metal

(b). Failing to adequately maintain drains to prevent flooding.

(c). Failing to repair bridges

(d). Failing to reconstruct washed-away roads.

(e). Failing to take proper and effective precautions to carry out works and effective measures to prevent public roads being or becoming or remaining inaccessible to Plaintiff and other bus users.

(f). Failing to exercise any or any reasonable care towards the Plaintiffs and other road users when he knew or ought to have known that the public roads were dangerous and inaccessible by the Plaintiffs.'

It is sufficiently clear from the averments and especially the particulars provided, that the Plaintiff's claim is based on what are claimed to be 'failure(s)' on the 3rd Defendant's part to act pursuant to a statutory duty imposed on him and not on any particular positive action of the 3rd Defendant in performing the duty i.e. negligence by omission as opposed to commission.

This distinction, which Lord Nicholls described as, '... fundamentally sound in this area of law' in Stovin v Wise [1996] UKHL 15; [1996] 3 All ER 801 at 806 is further:

'... based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so. The law has long recognised that liability can arise more readily in the first situation than the second. This is reasonable. In the second situation a person is being compelled to act, and to act for the benefit of another. There must be some special justification for imposing an obligation of this character.

'The subject matter of the statute ...; the intended purpose of the statutory duty or power ....; whether a concurrent common law duty might inhibit the proper and expeditious discharge of the statutory functions ...; the nature of the loss (whether physical injury or purely financial); .... the ability of the Plaintiff to protect himself ....; the adequacy of the public law remedies ....; and the presence or absence of a particular reason why the Plaintiff was relying or dependant on the authority .....'

Loffman (in then the majority) said in the same case at p.827:

'Whether a statutory duty gives rise to a privause of action is a question of construction [see: Weldon v Home Office [1991] 3 All ER 353 at 371]. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach.'

and later his lordshordship said:

'The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it wouldnusual if it nevertheless gess 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 .... If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.'
Quite plainly the sthe starting point for any discussion on the subject is the relevant legislative provisions relied upon by laintiff.

In this regardPlaintiffntiff company without reference to any particarticular statutory provision, merely refers to the 'Roads Act (Cap.175) and the Public Roads Act' in support of its claims. Given the non-existence of the latter Act however, it is only necessary to consider the Roads Act (Cap.175) which by its long title is: 'An Act relating to the Public Roads of Fiji' as declared by the Minister.

Under Part VI of tt subt subtitled Execution of Works 'the Permanent Secretary (not the 3rd named Defendant) and any other officers, servants, workmen and labourers employed by or under him' are given extensivers to execute necessary wory works on and for roading purposes including entering upon adjacent land (Section 7); taking materials (Section 8); erecting temporary buildings (Section 9); cutting overhanging trees (Section 12); constructing fences (Section 13); making and maintaining ditches, gutters and drains (Section 14); and placing stones or gravel on roads that are under repair (Section 15). It must be noted that all of the foregoing are mere statutory powers conferred by way of a discretion ('may') and not as positive commands ('shall') which might be construed as imposing a duty to act.

In this regard Lord Ho fman said (ibid at p.828):

'... the fact that Parliament has conferred a discretion must be some indication that the policy of the Act conferring twer was not to create a right to compensation. The need to d to have regard to the policy of the statute therefore means that exceptions will be rare.'

Even more trenchant is the observation of Lord Romer in East Suffolk Catchment Board v Kent [1940] UKHL 3; (1940) 4 All ER 527 where his lordship said, afterng various passages from thom the judgments in Sheppard v Glossorp Corporation [1921] 3 KB 132, at p.543:

'Where a statutory authority is entrusted with a mere power, it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power.'

In the Roads Act (Cap.175) the position is in my view, made even more clear by the specific enactment of Section 16 which expressly provides for the payment of compensation to 'every person who sustains any loss or damage by reason of the exercise of any of the powers and authorities conferred by this Act ...' and '(who) makes application in writing in that behalf to the Permanent Secretary before the expiration of three months after ... such damage is alleged to have been done'.

Needless to say tsence ence of any mention of a right to compensation for the 'non-exercise' of the powers conferred under the Act is some indicathat Parliament did not intend to impose a positive duty on the Permanent Secretary to act act in any given situation or that any failure on his part to act would entitle a person affected by such inaction to compensation of any kind.

The existence of a specific section in the Act dealing with compensation claims for any loss or damage sustained as a result of 'the exercise of any of the powers ... conferred by (the) Act' indicates that the Legislature had considered and determined the matter and, in my considered opinion, militates against both the imposition of a statutory duty on the Permanent Secretary to exercise the discretionary powers conferred on him under the Act, and, in default thereof, compensation by way of a private law claim for common law damages - 'expressio unius exclusio alterius'.

Addition paragraph 6 of 6 of the Statement of Claim, as pleaded, appears to come within the first category of cases recognised in the judgment of Lord Browne-Wilkinson name="X_v_Bedfordshire_Eastern_v_Ledua_Tuitoga">b>X v Bedfordshire CC [1995] 3 All ER 353 under the heading 'Breach of statutory duty simpliciter' where: 'the ... cause of action depends neither on proof of any breach of the Plaintiff's common law rights nor on any allegation of carelessness by the Defendant'.

In respect of such a claim his lordship said (at ibid p.364):

'The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private 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.'

In the present case the specific statutory duty averred in the pleadings is a duty 'to maintain the public roads in the island of Vanualevu. 'No particular statutory provision(s) is identified in the pleadings as giving rise to such a duty, and, on my reading of the Roads Act, no positive statutory duty is imposed on the Permanent Secretary to maintain public roads, nor, in my view is there a discernible '... limited class of the public' for whose benefit or protection the Act was enacted comparable to the Factories Act type legislation.

Indeed the converse is true. The Roads Act is plainly one of general application for the benefit of all members of the public, without distinction, who travel on or use public roads (wherever situated) whether as a necessary means of conducting a business such as in the case of public transport providers like the Plaintiff company, operating under Road Service Licences, or, as a means of transporting goods from one place to another as in the case of cartage or haulage firms, or for the convenience of pedestrian traffic.

There can be no doubting that the construction and maintenance of public roads is a legitimate (even crucial) government function requiring the expenditure of public funds and resources, but, equally, the areas in which already limited government resources are to be utilised necessarily involves government policy and priorities, which are 'non-justiciable' matters entirely for government to consider and determine.

As was said by Sir Nicolas Browne-Wilkinson V.C. (as he then was) in Lonrho Plc v Tebbit [1991] 4 All ER 973 at p.981:

'... it is well established that in cases where the exercise of a statutory discretion involves the weighing of competing public interests, particularly financial or economic interests, no private law duty of care arises because the matter is not justiciable by the courts. It is for the body to whom Parliament has committed that discretion to weigh the competing public interest factors: the courts cannot undertake that task.'

In somewhat similar vein in Stovin v Wise (op.cit) which was a case involving the failure of a highway authority to remove an obstruction at an intersection where an accident resulted because the Defendant's view was impaired by the obstruction, Lord Hoffmann said at p.826:

'Practically every decision about the provision of (public) benefits, no matter how trivial it may seem, affects the budget of the public authority in either timing or amount.'

and latep.827:

'It is one thing to provide a service at the public expense. It is another to require the public to payensation when a failure to provide the service has resulted in loss .... To require paymentyment 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.'

anally at p.832p.832 his lordship said:

'In my view the creation of a duty of care upon a highway authority, .... would inevitably expose the authority's budgetary decisions to judicial inquiry. This would distort the priorities of local authorities, which would be bound to try to play safe by increasing their spending on road improvements rather than risk enormous liabilities for personal injury accidents. They will spend less on education or social services. I think that it is important, before extending the duty of care owed by public authorities, to consider the cost to the community of the defensive measures which they are likely to take in order to avoid liability.'

A si concern was voicedoiced by Lord Bridge in Murphy v Brentwood DC [1990] 2 All E in which the House of Lords overruled in large part, an eaan earlier decision in the leading case of Anns v Merton London Borough Council [1977] UKHL 4; [1977] 2 All ER 492 dealing with the categorisation of the damages caused in that case, when his lordship said at p.931:

'(There) may be cogent reasons of social policy for imposing liability on the authority. But the shoulders of a public authority are only broad enough to bear the loss because they are financed by the public at large. It is pre-eminently for the legislature to decide whether these policy reasons should be accepted as sufficient for imposing on the public the burden of providing compensation for private financial losses. If they do so decide, it is not difficult for them to say so.'

Needless to say allh all due regard to Plaintiff counsel's submissions, I can find nothing in the Roads Act to support the suggestion that the Permanent Secretary has a duty toect vehicle owners from damage to their vehicles or from thom the economic loss incurred in increased repair costs, occasioned by the use of their vehicles on public roads. Much less is there an implied duty on the Permanent Secretary, to ensure that the Plaintiff company is able to provide a public service and/or operates profitably in servicing its voluntarily acquired Road Service Licences.

In this lategard, parapparaphrasing what was said by Lord Hoffman in Stovin's case (op.cit at p.833):

'Drivers (and owners) of motor vehicles must take the highway network as they find it. Everyone knows there are hazardous bends, intersections and junctions. It is primarily the duty of drivers (and owners) of vehicles to take due care. And if...they do not, there is compulsory insurance (or comprehensive insurance) to provide compensation to the victims (or for damage caused to their vehicles).'

It might be that some damage to the Plaintiff's buses might be attributed to the condition of the public roads over which they travel in servicing the Plaintiff's road service licences. But I say 'might' advisedly because, in my view, the foreseeability of damage to the Plaintiff's buses is neither irresistible or inevitable. Such damage may well be caused or contributed to by numerous factors quite unrelated to any failure on the Permanent Secretary's part to repair and/or maintain the roads. These include, the speed and manner in which the buses are driven on the roads; inclement weather conditions; and the actual state and condition of the Plaintiff's buses at the time.

Be that as it may, it is trite that foreseeability of loss is, by itself, an insufficient foundation giving rise to a duty to take positive action, in addition, there must exist a relationship of proximity or neighbourhood between the parties and most importantly, it should be fair and reasonable to impose a duty of care in the circumstances, [see: Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 1 All ER 568 at 573-574].

Finally, even if it could be successfully argued that the Roads Act imposed a positive statutory duty on the Permanent Secretary to repair and maintain public roads, nevertheless, the enforcement of such a duty lies in a public law action brought by way of judicial review and not in a private law claim for damages.

Fumore what standard(s)rd(s) is the Permanent Secretary required to meet or achieve in discharging his duty to repair and/or maintain public roads? and why should the standard be limited to that which would enable the Plaintiff's buses to use the roads to carry passengers as averred in the Statement of Claim? why not to a standard equal to or better than the Queens Road on Viti Levu? and what and who would be the arbiter of such standard? These questions merely serves to highlight how unreasonable it would be to impose on the Permanent Secretary a duty to take positive action in this case.

For the foregoing reasons, I am satisfied that the Plaintiff's claim against the 3rd and 4th Defendants, as pleaded, discloses no reasonable cause of action either under the Roads Act or in common law negligence and, accordingly, the claims are struck out with costs which are summarily assessed at $500.00 payable within 21 days from the date hereof.
Application to strike out granted.

Marie Chan