Public or Private? Duty of Care in a Statutory Framework: Stovin v Wise in the House of Lords

Abstract

A perennial problem in negligence actions involving public authorities is the balance to be struck between the ordinary principles of negligence liability and public law considerations which are regarded as militating against the imposition of a duty of care. The issue was comprehensively addressed by the House of Lords in X v Bedfordshire CC,l a decision which in general terms contained little to encourage litigation against public authorities. If anything, the emphasis on public law constraints is even more marked in the majority decision of the House (Lord Hoffmann, Lords Goff and Jauncey concurring) in Stovin v Wise.2 But the vigorous dissenting speech of Lord Nicholls (with whom Lord Slynn agreed) indicates that the problem of balance is not going to go away. Nor is it obvious that it should, if one agrees with Lord Nicholls' intuition that 'the damnified individual was entitled to expect better from a public body [and] leaving the loss to lie where it falls is not always an acceptable outcome.'3 There are, however, flaws in Lord Nicholls' analysis of the public law element in the case. At the same time, Lord Hoffmann's speech for the majority may not be free of difficulty. The net result is a majority decision containing a certain rigorous logic but which may restrict still further the prospects of a successful action in negligence against a public authority, and a minority decision with which one can sympathise but which may command only limited support in so far as it fails adequately even correctly to address the public law constraints on the scope of public tortious liability.