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Cite as: [1940] UKHL 3, [1941] AC 74

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JISCBAILII_CASE_TORT

    Die Lunae, 9° Decembris, 1940

    Parliamentary Archives,
    HL/PO/JU/4/3/959

    Lord
    Chancellor

    Lord Atkin

    Lord

    Thanker-

    ton

    Lord
    Romcr

    Lord
    Porter

    EAST SUFFOLK RIVERS CATCHMENT BOARD

    v,
    KENT AND ANOTHER

    The Lord Chancellor

    MY LORDS,

    On 1st December, 1936, there was an exceptionally high spring
    tide on the coast of Suffolk and this, reinforced by the influence of
    a northerly gale, caused the waters of the River Deben (which is
    tidal below Woodbridge) to rise so high as to wash over and break
    through in many places the ancient walls or banks, made of clay
    and stone, which ordinarily prevent the flooding of the adjoining
    marshland. The marshland inside the walls is at a lower level than
    ordinary high tides, and consequently if a breach is made in the
    walls the tidal water which enters will keep the marsh pastures
    flooded until the gap in the wall has been stopped, and the invading
    water has been drained away. There were no less than 22 breaches
    caused by this high tide in the walls of the River Deben alone,
    with the result that very extensive flooding took place. One of the
    most serious floodings occurred through a breach, estimated to
    measure 20 or 30 feet across, in the wall which guarded the marsh
    pastures of a farm belonging to the Respondent Porter, of which
    the Respondent Kent was the occupier. Some 50 acres of these
    pastures became and continued thus flooded.

    The Appellants are the Catchment Board, constituted under the
    Land Drainage Act, 1930, for the main rivers of East Suffolk, and
    the River Deben is one of these. By section 6 of the Act the Catch-
    ment Board exercises the powers conferred by the Act on Drainage
    Boards, so far as concerns the main rivers, including the banks
    thereof, and drainage works in connection with the main rivers.
    These powers, by section 34 (i) (a), include the power to repair any
    existing water course or drainage work, and the interpretation
    section (section 81) makes it plain that this includes the repair of
    such walls or banks as guarded the Respondents' farm until they
    were broken through. The Statement of Claim contained the
    allegation that the Appellants were under a duty to keep the
    Respondents' walls in efficient condition and, if a breach occurred,
    were under a duty "efficiently and with the utmost expedition"
    to repair any breach. This contention was, however, rejected by
    Mr. Justice Hilbery who tried the case, and in taking this view,
    which is plainly right, the learned judge was following and approv-
    ing previous decisions by Mr. Justice du Parcq (as he then was)
    in the case of Smith v. Cawdle Fen, Ely (Cambridge) Commis-
    sioners,
    (1938) 4 A.E.Rep. 64, and Mr. Justice Stable in Gillett v.
    Kent Rivers Catchment Board (1938) 4 A.E.Rep. 810 at pp. 813,
    814. Before the Court of Appeal, the Respondents no longer con-
    tended that the Land Drainage Act imposed on the Appellants a
    positive duty to intervene and undertake the repair of any breach,
    and the argument there and before this House has proceeded on
    the basis that the Appellants had statutory power to intervene, but
    were not under a duty to do so which could be enforced by action.
    It is to be noted, however, that under section 12 a Catchment Board
    which fails to exercise its powers may, in certain circumstances, be
    directed by the Minister of Agriculture and Fisheries with respect
    to the performance of its statutory functions.

    If, therefore, the Appellant Board had remained entirely passive,
    it is agreed that the Respondents could not have succeeded in any
    action against them for non-feasance. But the Appellants did not
    remain inactive, but endeavoured to deal with all the breaches that
    had taken place in their area, amounting to about 30 in number,

    2 [2]

    including the serious breach in the wall skirting the Respondents'
    land. In the other cases on the River Deben the Appellants seem
    to have been successful, but Mr. Justice Hilbery has found, and,
    following the Court of Appeal, I am prepared to accept the learned
    judge's finding on the facts, that the methods adopted and the staff
    employed in trying to repair the damage to the wall, with which we
    are concerned in this case, were so inefficient that, whereas the gap
    could, by the exercise of reasonable skill, have been closed and the
    flooding arrested in 14 days, this result was not in fact attained till
    after the lapse of 164 days. In the meantime, of course, the marsh
    pastures remained covered by salt water and the Respondents con-
    tinued to suffer the damage which had been initiated by the breach
    in the wall. For the purpose of deciding the difficult and important
    issue of principle which now arises, details as to the Appellants'
    unsuccessful efforts do not matter, but it is convenient to state that
    it was only at the third attempt that the gap was successfully filled,
    and that in the view of the learned judge, who had a body of expert
    evidence before him, the earlier efforts of the Appellants, which
    consisted in attempting to build straight across the gap instead of
    building a semi-circular bastion out into the saltings and then recon-
    structing the wall behind this protection, had only the remotest
    possibility of success, and caused the delay.

    The problem of law which now arises for solution is by no means
    an easy one. Its essential elements are these, (1) The Appellant
    Board were under no statutory duty to repair the breach, but they
    had the power to enter upon the land for the purpose of endeavour-
    ing to effect such repair and they did so enter. (2) It was the
    original breach in the wall, caused by the act of nature, which pro-
    duced the flooding of the Respondents' land and it was the opera-
    tions of the ride which kept it flooded; the efforts of the Appel-
    lants were directed to abating this damage. (3) If the Appellants
    had not shown such want of skill in trying to repair the wall, and
    if they had been served by an adequate well-trained staff, the gap
    in the wall would have been closed much sooner than it was and
    the flooding would have been more promptly abated.

    The question is whether, in the above circumstances, the Appel-
    lants are liable to the Respondents in damages to such amount as
    would represent the net loss to the Respondents due to the delay in
    abating the flood. The Court of Appeal were divided on this issue.
    Lord Justice Slesser and Lord Justice MacKinnon thought that the
    Appellants were liable as for breach of duty to do their work with
    reasonable care and expedition. Lord Justice du Parcq differed
    and held that the Appellant Board was "not liable for damage
    " suffered through failure to exercise its powers adequately or at
    " all, even though the damage might have been averted or lessened
    " by the exercise of reasonable care and skill."

    It is not, of course, disputed that if the Appellants, in the course
    of exercising their statutory powers, had inflicted fresh injury on
    the Respondents through lack of care or skill, they would be liable
    in damages for the consequences of their negligent act. If, for
    example, the Appellants, by their unskilful proceedings had caused
    a further area of the Respondents' land to be flooded, or had pro-
    longed the period of flooding beyond what it would have been if
    they had never interfered, they would be liable. But (apart from
    two minor matters, which it is agreed do not govern the main issue)
    nothing of this sort happened. The Respondents would have gained
    if the flooding had been stopped sooner; their complaint against
    the Appellants is that they did not act with sufficient skill to stop
    it more promptly; but the Respondents cannot point to any injury
    inflicted upon them by the Appellant Board, unless it be the Board's
    want of success in endeavouring to stop the flooding at an earlier
    date.

    [3] 3

    In order that the Respondents should succeed in this action, it
    is necessary that they should establish, not only that the Appellants
    were wanting in care and skill when exercising their statutory
    powers, but that they inflicted injury and loss upon the Respondents
    by their negligence. Lord Parker thus states the proposition in
    G.C.R. v. Hewlitt ([1916] 2 A.C. 511 at p. 519). 'It is undoubtedly
    " a well-settled principle of law that when statutory powers are
    " conferred, they must be exercised with reasonable care so that if
    " those who exercise them could by reasonable precaution have pre-
    " vented an injury which has been occasioned, and was likely to be
    " occasioned, by their exercise, damage for negligence may be
    " recovered." In the present case the damage done by the flooding
    was not due to the exercise of the Appellants' statutory powers at all.
    It was due to the forces of nature which the Appellants, albeit
    unskilfully, were endeavouring to counteract. Supposing, for
    example, that after the Appellants had made their first unsuccessful
    attempt they had decided to abandon their efforts altogether, the
    Respondents could have had no legal claim against them for with-
    drawing, even though the result might have been to leave the
    Respondents' land indefinitely flooded. This shows, I think, how
    different is the relation between the Catchment Board and indi-
    vidual owners or occupiers like the Respondents, and the relation
    between a contractor employed by the Respondents to mend the
    wall. In the latter case the Respondents would have a remedy in
    damages if the contractor did not exercise reasonable skill and
    promptness in discharging his task and if damage resulted. But in
    the former case the Catchment Board has its responsibilities over
    the whole of its area to consider; it 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 par-
    ticular repair is more than its limited finances would permit. Part
    IV of the Land Drainage Act contains financial provisions; without
    setting these out at length, it is sufficient to say that the expenses of
    the Catchment Board are met by the issue of precepts to the County
    Council and, it may be, to certain other local bodies, but that the
    statute puts limits to the amounts thus raised. Lord Justice du
    Parcq, in his dissenting judgment, points out that when Parliament
    has left it to a public authority to decide which of its powers it shall
    exercise, and when and to what extent it shall exercise them, this
    may raise "a question involving the consideration of matters of
    " policy and sometimes the striking of a just balance between the
    " rival claims of efficiency and thrift."

    Reference was made during the argument, as was natural, to
    the well-known words of Lord Blackburn in Geddis v. Bann
    Reservoir Proprietors
    (3 A.C. 430 at p. 455). "I take it, without
    " citing cases, that it is now thoroughly well established that no
    " action will lie for doing that which the legislature has authorised,
    " if it be done without negligence, although it does occasion damage
    " to anyone; but an action does lie for doing that which the legisla-
    " ture has authorised, if it be done negligently." Lord Blackburn
    would certainly not wish to be understood as saying that such an
    action would lie in the absence of proof that the defendant's negli-
    gence caused damage; indeed, negligence in such a connection
    involves the twofold conception of want of care on the part of the
    defendant and the consequential infliction of loss upon the plaintiff.
    As Lord Reading C.J. observed in Munday v. London County
    Council
    (1916) 2 K.B. 331 at p. 334, "Negligence alone does not give
    " a cause of action; damage alone does not give a cause of action;
    " the two must co-exist." A third essential factor is the existence
    of the particular duty. As Lord Wright expressed it in Lochgelly
    Iron and Coal Co.,
    v. M'Mullan [1934] A.C.1 at page 25, "In

    4

    [4]

    " strict legal analysis, negligence means more than heedless or care-
    " less conduct, whether in omission or commission: it properly con-
    " notes the complex concept of duty, breach, and damage thereby
    " suffered by the person to whom the duty was owing."

    Moreover, as Lord Justice Scrutton has pointed out in Sheppard
    v. Glossop Corporation ([1921] 3.K.B. 132 at pp. 145, 146) Lord
    Blackburn's passage must be read in the context in which it was
    pronounced. I agree with Lord Justice due Parcq that it would be
    misapplied if it were supposed to support the proposition that a
    public body, which owes no duty to render any service, may become
    liable at the suit of an individual, if once it takes it upon itself
    to render some service, for failing to render reasonably adequate
    and efficient service. On the other hand, if the public body by its
    unskilful intervention created new dangers or traps, it would be
    liable for its negligence to those who suffered thereby. Lord Justice
    Scrutton, at page 149 of Sheppard v. Glossop Corporation, has a
    passage which makes the same distinction. That case was con-
    cerned with a local authority upon which Parliament had conferred
    a discretionary power of lighting. "If they do light," said the
    learned Lord Justice, "they will be liable in damages for negligence
    " in lighting; negligence in allowing gas or electricity to escape;
    " negligence in putting posts in a highway without warning; and
    " negligence in placing traps and dangers in the streets and not
    " lighting them at night. But they are not liable merely because in
    " the exercise of their discretion they do not light, or because they
    " discontinue lighting, dangers which they have not themselves
    " created."

    These considerations lead to the conclusion that the Respondents'
    claim is ill-founded. They have suffered damage by the flooding
    of their land during four months or more. They seek to recover
    compensation from the Appellants for all of this loss except the first
    fortnight. But the Appellants did not cause the loss; it was caused
    by the operations of nature which the Appellants were endeavour-
    ing, not very successfully, to counteract. It is admitted that the
    Respondents would have no claim if the Appellants had never
    intervened at all. In my opinion, the Respondents equally have
    no claim when the Appellants do intervene, save in respect of such
    damage as flows from their intervention and as might have been
    avoided if their intervention had been more skilfully conducted.

    In my opinion, therefore, the Appeal should be allowed.

    Lord
    Chancellor

    Lord
    Atkin

    Lord

    Thanker-

    ton

    Lord
    Romer

    Lord
    Porter

    [5]

    EAST SUFFOLK RIVERS CATCHMENT BOARD

    v.
    KENT AND ANOTHER.

    Lord Atkin (READ BY LORD PORTER)

    MY LORDS,

    Two material points emerged on the argument of this appeal: —-

    1. Was there a duty owed to the plaintiffs and, if so, what
      was its nature ?

    2. If there was a duty owed to the plaintiffs to conduct
      the work with reasonable despatch, was there any damage
      caused to the plaintiffs by the breach of the duty ?

    On the first point I cannot help thinking that the argument did
    not sufficiently distinguish between two kinds of duties.

    1. A statutory duty to do or abstain from doing something.

    2. A common law duty to conduct yourself with reason-
      able care so as not to injure persons liable to be affected by
      your conduct.


    1. The duty imposed by statute is primarily a duty owed to
      the State. Occasionally penalties are imposed by the statute for
      breach; and, speaking generally, in the absence of special sanctions
      imposed by the statute the breach of duty amounts to a common
      law misdemeanour. The duty is not necessarily a duty owed to a
      private citizen. The duty may, however, be imposed for the pro-
      tection of particular citizens or class of citizens, in which case a
      person of the protected class can sue for injury to him due to the
      breach. The cases as to breach of the Factory or Coal Mines
      Act are instances. As a rule the statutory duty involves the notion
      of taking care not to injure and in such cases actions for breach
      of statutory duty come within the category of negligence.
      (Lochgelly Iron and Coal Co. v. M'Mullan
      [1934] AC 1.)

    2. But apart from the existence of a public duty to the public,
      every person whether discharging a public duty or not is under a
      common law obligation to some persons in some circumstances to
      conduct himself with reasonable care so as not to injure those
      persons likely to be affected by his want of care. This duty exists
      whether a person is exercising a public duty, or merely exercising
      a power which he possesses either under statutory authority or in
      pursuance of his ordinary rights as a citizen. To whom the
      obligation is owed is, as I see it, the principal question in the present
      case.

    Of the existence of the duty and the nature of it in the case of
    statutory duties or powers there is abundant authority, most of
    which was cited. I do not propose to discuss the cases, but will
    mention the following: Boulton v. Crowther (1824), 2 B. & C., 703:
    Trustees acting under Turnpike Act authority: " If, in doing the
    " act, they acted arbitrarily, carelessly or oppressively, the law in
    " my opinion has provided a remedy" (per Abbott, C.J., at page
    707): Southampton and Iichen Floating Bridge Company v. Local
    Board of Health of Southampton
    (1858), 2 E. & B. 801: Demurrer
    overruled to the declaration which alleged that the defendants
    " conducted themselves so wrongfully, improperly and negligently
    " and with such want of due and proper care" as to injure the
    plaintiffs; Whitehouse v. Fettowes (1861), 2 C.B., N.S., 765, another
    case of negligence by trustees under a Turnpike Act: It may be
    " observed that the act I have supposed to be done by the trustees

    2 [6]

    " is one which must necessarily produce damage whether done
    " carefully or not, but the qualification put in the case is this, that
    " if the act authorised to be done by the trustees is done so care-
    "lessly or improperly that the careless or improper manner in
    " which it is done either creates or increases the damage, the
    " trustees will be liable " (Williams J., at page 780); Mersey Docks
    and Harbour Board Trustees
    v. Gibb (1886), 1 E. & I. App., 93;
    Geddis v. Proprietors of Bann Reservoir, 3 A.C., 430: "An action
    " does lie for doing that which the Legislature has authorised if
    " done negligently" (per Lord Blackburn at page 456), with the
    prelude that "it is now thoroughly well established"; Milward v.
    Redditch Local Board (1873), 21 W.R., 429, where it was held that
    the defendants "had no right to make improvements in a way
    " calculated to cause unnecessary injury to the plaintiffs"; Roberts
    v. Charing Cross, Euston and Hampstead Railway (1903), 87 L.T.,
    732 (an action to restrain a railway company from working by
    night so as to disturb plaintiff): "To this principle there is, how-
    " ever, one qualification which is well settled and indeed is admitted
    " by the defendants—namely, that in carrying out works authorised
    by statute you must not act negligently"; Mayor, etc., of East
    Fremantle
    v. Annois (1902), A.C., 213, where Lord Macnaghten
    accepts Abbott, C.J.'s statement in Boulton v. Crowther (supra)
    quoted above; Howard-Flanders v. Maldon Corporation (1926),
    135 L.T., 6, where Lord Hanworth, M.R., at page 10, says that the
    defendants "must not act unreasonably, arbitrarily, oppressively
    " or wantonly ", and Scrutton, L.J., at page 11, selects a passage
    from the judgment of Lord Collins in Southwark and Vauxhall
    Water Company
    v. Wandsworth Local Board (1898), 2 Ch., 203:
    " Merely an assertion of the proposition so frequently affirmed that
    " where statutory rights impinge upon what but for the statute
    " would be the rights of other persons, they must be exercised
    " reasonably so as to do as little mischief as possible." Finally I
    would refer to Sheppard v. Glossop Corporation (1921), 3 K.B. 132,
    where the decision was based upon an acceptance of the pro-
    position that an undertaker is liable if he exercises a power
    negligently, but is not liable for refusing to exercise the power
    though it might be reasonable to do so. I was a party to that
    decision, and will not cite any remarks of Bankes L.J. or myself
    but will refer to words taken from Scrutton L.J. at pp. 145-6: "But
    " it is going far beyond Lord Blackburn's dictum to say that because
    " when an option is given by statute to an authority to do nor not to
    " do a thing and it elects to do the thing and does it negligently it is
    " liable, therefore it is liable if it elects not to do the thing which
    " by the statute it is not bound to do at all."

    I treat it therefore as established that a public authority, whether
    doing an act which it is its duty to do, or doing an act which it is
    merely empowered to do, must in doing the act do it without
    negligence, or, as it is put in some of the cases, must not do it care-
    lessly or improperly. Now quite apart from a duty owed to a
    particular individual, which is the question in this case, I suggest
    that it would be difficult to lay down that a duty upon a public
    authority to act without negligence or not carelessly or improperly
    does not include a duty to act with reasonable diligence, by which
    I mean reasonable despatch. I cannot imagine this House affording
    its support to a proposition so opposed to public interests, when
    there are so many public bodies exercising statutory powers and
    employing public money upon them. I myself have been unable
    to think of any case where a duty to perform a continuous opera-
    tion with reasonable care, i.e. without negligence, does not involve
    an obligation to perform it with reasonable despatch. Of course
    what is reasonable means reasonable in all the circumstances of
    the particular case.

    [7] 3

    I thus come to the crucial point in this case: to whom is such a
    duty owed, or who can complain of the failure to use reasonable
    despatch? Now it must be conceded that instances will occur of
    the exercise of powers where it might be difficult for a member
    of the public generally to complain of unreasonable delay. For
    instance delay in the work of relaying the surface of a highway
    may not be actionable at the suit of members of a highway
    are put to expense and inconvenience by having to make a detour.
    Even in this case I think something might be said for a house-
    holder or shopkeeper on the route under repair who is for an
    unreasonably long time deprived of access to his premises for him-
    self and his customers. But we have to deal here with relations
    between the plaintiffs and the Board, which I suggest are much
    closer than the general relations of members of the public to a
    public authority. The Board were engaging themselves in repairing
    the plaintiffs' wall with the object of preventing the further flooding
    of the land of the plaintiffs, and I think also of one other occupier,
    and they were operating upon the plaintiffs' land. Subject to what
    I have to say upon the causation of damage, which I wish for
    the present purpose to assume, they would know that the longer
    the work was delayed the longer would the waters ebb and flow
    over the land, with the possibility of damage therefrom. In my
    opinion these relations give rise to a duty owed to the plaintiffs
    to use reasonable care, including despatch, in doing the work.
    Indeed over and over again the appellant's counsel admitted that
    if and so far as their work was conducted with such unreasonable
    delay as to deprive the plaintiffs of the use of their land owing to
    occupation by the Board's workmen or materials there would be
    a good claim for damage. This admits a duty owed to the plaintiffs
    in respect of despatch, and this controversy is confined to the extent
    of the duty and the injury caused by it. It is in respect of this
    use of the plaintiffs' land that the question as to the power of the
    plaintiffs to do the work themselves becomes at all relevant. I
    feel sure that the reference to this in Slesser L.J.'s judgment was
    misunderstood in the appellant's argument. It is not that the
    Board owed a duty to the plaintiffs because the plaintiffs could
    have done the work themselves. I think that the argument is that
    the Board came upon the plaintiffs' land to do work which the
    plaintiffs could have done themselves, and that that circumstance
    indicates a relationship which imports a duty owed to the plaintiffs
    to do the work with reasonable despatch. I do not wish to refer
    in detail to Donoghue v. Stevenson (1932), A.C. 562, but I venture
    to think that the principles there accepted by the majority of this
    House give guidance on this part of the case.

    I now come to the second part of the case, viz., whether, if there
    existed any duty owed by the Board to the plaintiffs to conduct the
    work with reasonable despatch, there was any damage caused by
    the breach.

    I would begin by noting that there is in pleading no difference
    between actions of contract or tort as to the allegation of the cause
    of damage: "per quod", or, as in Bullen and Leake, "whereby",
    is the conventional averment that damage resulted from an in-
    fringement of a right of the plaintiff whether based on contract or
    tort. This merely illustrates the legal position. "The damage
    " must be such as would flow from the breach of duty in the
    " ordinary and usual course of things. That is the general rule,
    " both in contract and in tort, except that in contract the law does
    " not consider as too remote such damages as were in the con-
    " templation of the parties at the time when the contract was
    " made. Subject to that, only such damages can be recovered as
    " were immediately and naturally caused by the breach "; Cobb
    v
    Great Western Railway Co. (1893) 62 L.J.Q.B., at p. 337, cited
    by Lord Sumner in Weld-Blundell v. Stephens (1920), A.C at p 979

    11077 A4

    4 [8]

    The doubt that has arisen in the present case is as to whether the
    particular damage relied on by the plaintiffs was caused by the
    breach. The flood, it is said, broke down the plaintiffs' wall; the
    flow of water over their land was caused by the flood; the
    defendants were engaged in preventing similar damage from
    happening again to the plaintiffs; and nothing they did or omitted
    to do caused the damage complained of. I venture to think that
    this does not quite meet the plaintiffs' point. I understand them
    to say: "true it is that we cannot complain of the original flood-
    ' ing: and we must put up with the damage that resulted from
    ' the ebb and flow of the water over our lands for a certain time,
    ' viz., the time that would expire before our wall was repaired, once
    ' you had begun to repair it, with reasonable despatch—x days.
    ' But on the assumption now made you were under a duty to us
    ' to use reasonable despatch, and the water ebbed and flowed over
    ' our land for a far longer period—x + y days; and we have
    ' suffered damage from the presence of water for this x + y period
    ' greater than the damage we would have suffered from the x period
    ' alone." Now if the plaintiffs can prove this it seems inevitable
    that the extra damage is directly caused by the breach complained
    of. May I introduce a hypothetical case of a contractual duty,
    assuming as I do that the causation of damage is the same in con-
    tract and tort. Assume that a shopkeeper had his roof injured
    in rainy weather so that the rain came in upon his goods: and
    that he contracted with a builder to repair it with an express term
    that work should proceed without unreasonable delay. If the
    builder were guilty of unreasonable delay whereby the rain beat
    upon the shopkeeper's goods for say 14 days instead of 4, would
    not the shopkeeper be able to recover such damages as he could
    show resulted from the excess exposure, showing possibly that
    his goods could stand 4 days' exposure with little damage but
    could not stand the extra 10? I think that this would be a plain
    case: and it would not depend upon an obligation to complete
    the work. The builder might be protected from an obligation to
    complete by subsequent conditions, death, strikes, war and the like,
    but for such damage as would be shown to be due to delay in the
    work while it was being performed I conceive he would clearly
    be liable. Such damage would be caused by the delay in repair,
    notwithstanding that the original cause of damage, the rain, and
    its continuance were in no way caused by the builder. I am
    therefore of opinion that if the plaintiffs could prove the case
    indicated above they should succeed. I appreciate that there is
    very slight evidence at present in support of this case, and I should
    not myself be prepared to accept the Judge's suggestion, if that is
    what he really intended at p. 39 (A) of his judgment, that each
    day after the end of 14 days the flooding caused fresh damage.
    But it would obviously be impossible, in a case where to avoid
    expense the parties had agreed not to try the question of damages
    at the hearing, to dismiss a case for want of satisfactory proof of
    damage. I should be quite content to direct the Judge to consider
    whether any damage at all of this kind was proved on the hearing
    the damages issue, and if he found substantially none then to
    give judgment in the result for the defendants. I think the costs
    in such a case should probably be reserved. On the questions,
    however, argued before us I think that our decision should be for
    the plaintiffs.

    Lord
    Chancellor

    Lord
    Atkin

    Lord

    Thanker-

    ton

    Lord
    Romer

    Lord
    Porter

    [9]

    EAST SUFFOLK RIVERS CATCHMENT BOARD

    v
    KENT AND ANOTHER.

    Lord Thankerton

    MY LORDS,

    I have had the privilege of considering the opinions prepared
    by your Lordships, and, while I agree with the majority of your
    Lordships that the Appeal should be allowed, I desire to state in
    my own way the principles and their application to the present
    case which have led me to that conclusion.

    It is admitted that the Land Drainage Act 1930 did not impose
    a positive duty to undertake the repair of breaches in the wails and
    banks of the main river on the Appellants, but conferred on them
    power to undertake such repair, and to enter upon lands belonging
    to another for that purpose. It is clear to me that the Appellants
    owed no duty to the Respondents unless and until they actually
    entered on their land and commenced operations for repair of the
    breach. But I am equally clear that, as soon as they entered
    upon the land and commenced operations, the Appellants owed
    a duty to the Respondents to conduct such operations with such
    reasonable care as would avoid causing damage to the Respondents'
    property, and that they would be liable to the Respondents if the
    latter could show (a) absence of such reasonable care in the conduct
    of the operations, and (b) that they had suffered loss which was
    caused by such lack of reasonable care.

    On the question of existence of a duty, it seems to me to be
    impossible to maintain that Parliament intended to authorise the
    Appellants to cause damage to the Respondents by want of ordinary
    care in their operations on the Respondents' property. But I must
    make clear that, in my opinion, that duty only relates to the opera-
    tions which they actually perform on the Respondents' land. If
    the Appellants chose to abandon the operations when only partially
    complete, they would be, in my opinion, entitled to do so, and
    would be under no liability to the Respondents for such cessation,
    except in so far as the partially completed works might constitute
    a danger leading to damage. This is clearly stated by Scrutton L.J.
    in the Glossop case, (1921) 3 K.B. 132, at 149 foot. This discretion
    as to abandonment of the operations is in marked distinction to
    the case of a positive statutory duty to undertake the repair, and
    the cases of a contractual undertaking to do the work.

    The next question is as to the standard of care which will con-
    stitute reasonable care. Your Lordships have had occasion recently
    to point out once more that the standard necessarily varies accord-
    ing to circumstances, Caswell v. Powell Duffryn Associated
    Collieries Ltd.,
    (1940) A.C. 152. It does appear to me that there
    are special circumstances in the case of statutory bodies, such as
    the Appellants, which should lead to the application of a somewhat
    less exacting standard than ordinarily prevails. The actions of the
    waters, with whose depredations they are intended to deal, are
    uncertain and incalculable and the provision of staff, plant and
    material adequate to deal with sudden emergencies, let alone their
    somewhat cramped financial resources, present great difficulty, and,
    when you add the importance and the urgency of remedial
    measures, it does seem to me that much may be condoned as well-
    meant error of judgment, which under other circumstances might
    be considered as unjustifiably risky. I feel bound to make these
    observations for future guidance, although in the present case,

    2 [10]

    keeping them fully in mind, I am unable to find that Hilbery J.
    was not entitled to hold that the Appellants committed a breach
    of their duty to the Respondents in adopting a method of repair
    which no reasonable man would have adopted. It was in this
    view that I have felt throughout that the only real question in
    this appeal relates to causation, and the difficulty arises from the
    fact that prior to the intervention of the Appellants a source of
    damage had been already created by the action of the flood waters
    and that that source continued to be available—at least in some
    measure—until it was at long last excluded by the operations of
    the Appellants. Now the point on which admittedly the success
    or failure of the Appeal depends, is whether the failure of the
    Appellants to close the breach sooner by an efficient method can be
    held as the causa causans of the damage which accrued during
    these extra days, to the exclusion of the flood breach as a cause
    of the damage. But it was in fact still the action of the water
    rendered possible by the original breach that caused the damage
    during these days, and failure to stop such action of the water
    cannot alter the fact that it is the water coming through the breach
    that causes the damage. I am accordingly of opinion that the
    Respondents have failed to make a case sufficient to establish the
    essential link between the breach of duty found by the learned
    Judge and the main damage of which they complain, and that the
    Appeal should be allowed.

    [11]

    Lord
    Chancellor

    Lord
    Atkin

    Lord

    Thanker-

    ton

    Lord
    Romer

    EAST SUFFOLK RIVERS CATCHMENT BOARD

    v.
    KENT AND ANOTHER.

    Lord Romer

    MY LORDS,

    The Respondents by their statement of claim in the action
    alleged that after the river had broken through their wall the
    Defendants "as was their duty" commenced to repair the said
    wall, but in breach of their duty failed to do the same efficiently
    and with the utmost expedition possible, in consequence of which
    breach of duty the flooding of the Respondents' marshland con-
    tinued for many months. The Respondents in other words were
    contending that by virtue of the Land Drainage Act, 1930, the
    Appellants had a duty and not merely a power to repair the wall
    in question. At the trial of the action this contention was rejected
    by Hilbery J., and neither in the Court of Appeal nor before this
    House was the decision of the learned Judge upon this point in
    any way challenged. What, however, the Respondents did contend
    was that, though not imposed upon the Appellants by the Act,
    such a duty was nevertheless imposed upon them by the common
    law the moment that they began to exercise their statutory power
    of repairing the wall. It is not and cannot be said that the duty
    arose from any contract between the parties express or implied.
    Nor is it said that it can be treated as existing by an application
    of the law of estoppel. For there is no evidence that would justify
    a finding of the existence of any such contract or of any such
    estoppel. The duty is said to be imposed by the common law of
    England.

    My Lords, it has been laid down time and again that, in
    exercising a power that has been conferred upon it, a statutory
    authority is under an obligation not thereby (i.e., by the exercise
    of the power) to inflict upon others any damage that may be
    avoided by reasonable care. But I know of no authority for the
    proposition that in selecting the time within which, the extent to
    which, and the method by which its statutory power is to be
    exercised its owes any duty whatsoever. There is, indeed, as I will
    point out later on, a decision of the Court of Appeal in England
    that is inconsistent with such a proposition. And yet this is the
    proposition that is involved in the Respondents' contention in the
    present case. They allege, and for myself I think that they have
    proved, that the Appellants, until they eventually embarked upon
    the construction of the V-shaped dam, selected a method of repair-
    ing the Respondents' wall which, in view of the labour and
    materials at their disposal, was one that no reasonable man would
    have adopted. The result was that the sea water continued to
    flow through the breach in the wall and that the Respondents'
    marshland continued to be flooded for a longer time than would
    have been the case had the Appellants acted more reasonably;
    and I will assume that by reason of this the Respondents suffered
    material damage. Now, had the Land Drainage Act, 1930, imposed
    upon the Appellants the duty of repairing the wall instead of
    merely conferring upon them the power of doing so, they could
    without question have been made liable for this damage. For they
    would in that case have been under the obligation of effecting the
    repair with all reasonable skill and diligence, and they would have
    committed a breach of such obligation had there been any un-
    reasonable delay in effecting the repair, whether such delay was

    2 [12]

    due to an unreasonable time being taken in beginning the work
    or in the course of carrying it out or to their having adopted an
    unreasonable method of repair. But the Act imposed upon the
    Appellants no duty of repairing the wall. It merely gave them
    the power of doing so. Whether or not they should exercise that
    power was a matter entirely within their own discretion unless
    and until the Minister of Agriculture intervened under Section 12
    of the Act. Had they determined not to effect the repair at all,
    or not to embark upon the work until (say) the end of the following
    March, the Respondents would have had no cause of action for
    the damage entailed upon them by such decision. Mo one could
    successfully have contended that in the latter case any extra
    damage occasioned to the Respondents by reason of the breach
    in the wall remaining open to the sea between the 1st December
    and the end of March was due to the negligent exercise by the
    Appellants of the power conferred upon them by the Act. Upon
    what principle then can the Appellants be made responsible for
    such damage merely by reason of the fact that they occupied
    the intervening time in making a futile attempt to effect the repair
    by a method that any reasonable person ought to have realised
    had no prospect of success ? Supposing moreover that after having
    embarked upon the work of repair on the 2nd December (as the
    Appellants in fact did when Studd, upon the instructions of Clark,
    started a quite ridiculous attempt to fill up the breach by throwing
    into it bags of clay)—Clark had then decided that in view of the
    material and labour at his disposal it would be better to refrain
    from any further attempts at repair for the moment, upon what
    principle could the Appellants have been held responsible for any
    damage caused by the delay ?

    My Lords, the Respondents' answer to these questions that I
    have just propounded is, 'The principle enunciated by Lord
    " Blackburn in the case of Geddis v. Proprietors of Bann Reservoir,
    " 3 A.C. at p. 455." It was in these words: "I take it, without
    " citing cases, that it is now thoroughly well established that no
    " action will lie for doing that which the legislature has authorised,
    " if it be done without negligence, although it does occasion damage
    " to anyone; but an action does lie for doing that which the
    " legislature has authorised, if it be done negligently. And I think
    " that if by a reasonable exercise of the powers, either given by
    " statute to the promoters, or which they have at common law,
    " the damage could be prevented it is within this rule, ' negligence'
    " not to make such reasonable exercise of their powers." It is
    plain, however, on a careful reading of this passage that the damage
    to which Lord Blackburn is referring is the damage which "it"—
    i.e., the exercise of the power—occasions, and not damage that
    would in any case have been occasioned had the power never
    been exercised at all, or only exercised after a delay that might
    appear to be an unreasonable one. It is also to be observed that
    in the case which was then before this House, the damage of which
    Geddis was complaining was damage that he would not have
    sustained had the statutory authority refrained from exercising its
    powers. It was damage inflicted upon him by reason of the fact
    that the authority did exercise its powers. Unless in reading Lord
    Blackburn's words, that circumstance be borne in mind, and unless
    the exact language that he used be closely scrutinised, his words
    are very liable to be misunderstood. It was because one Sheppard
    misunderstood them that he brought an action against the
    Corporation of Glossop and was discomfited.

    The case is reported in 1921, 3 K.B., at p. 132, and the facts of
    it so far as material were as follows. The Corporation had the
    power of lighting the streets in their district, but were not under
    any obligation to do so. In exercise of this power they had erected

    [13] 3

    a gas lamp in a street known as Dun LMW, but on one Christmas
    night the lamp was extinguished by one of their servants soon
    after 9 o'clock in pursuance of a general order issued by them
    from motives of economy. Now upon that evening the unfortunate
    Sheppard had been paying a visit to a friend's house, and left there
    at 11.30 p.m. His way home led him, or rather should have led
    him, along Dun Lane. But when nearing the lane he found the
    place was in complete darkness. The result was that he missed
    the proper entrance to the lane and wandered on to some adjoining
    land. He eventually arrived in the lane by falling over a retaining
    wall at its side, and was seriously injured. Feeling somewhat
    strongly, and not unnaturally, that any lighting authority which
    turned off the lights on a Christmas night at the early hour of
    9 p.m. was acting in a highly unreasonable manner, he sued the
    Corporation for damages caused by their negligence. The action
    was tried before Greer J. (as he then was) and resulted in judgment
    being entered for Sheppard. The learned Judge found as a fact
    that the accident would not have happened if the lamp had been
    lighted. The Corporation, however, took the case to the Court
    of Appeal, and their appeal was allowed. It is interesting to note
    the contention put before that Court by the learned counsel
    appearing for Sheppard, because it bears a very close resemblance
    to the argument advanced by the Respondents on the appeal now
    before Your Lordships' House. "Assuming," said the learned
    counsel, " that the Appellants are under no duty but are merely
    " empowered to light their district; and that if they had never
    " lighted Dun Lane the Respondent would have had no cause of
    " action; yet having taken it upon them to light this place they
    " were bound to light it adequately." In support of this contention
    he cited the words of Lord Blackburn to which I have referred
    and upon which the decision of Greer J. had apparently been
    founded. The contention in effect was this: that although a
    Statutory Authority may have been given a power to do a par-
    ticular thing without being placed under the obligation to do it,
    yet the moment that it sets about doing the particular thing, the
    Statutory Authority is in precisely the same position as it would
    have been in had the legislature originally imposed upon it the
    duty of doing it. The contention was rejected, and in my opinion
    rightly rejected by the Court of Appeal. Bankes L.J. said: 'The
    " Appellants have merelv exercised the discretion vested in them
    " by the Legislature. They were under no obligation to place a
    " lamp post at this particular spot; haying placed it there they
    " were not bound to keep it there; and if they kept it there they
    " were not bound to supply it with gas, and are not to be made
    " liable for merely extinguishing the light at any particular hour."
    In making these observations the Lord Justice was not (as was
    made clear in an earlier part of his judgment) contemplating the
    case of a person being injured by running into an unlighted lamp
    that had been placed in the street by the Corporation. The injury
    in that case would have been caused directly by the exercise of
    the power, i.e., it would not have been suffered at all had the
    Corporation refrained from exercising the power. This distinc-
    tion was very clearly pointed out by Scrutton LJ. Referring to
    Local Authorities who have had conferred upon them a discre-
    tionary power of lighting he said: "If they do light they will be
    "liable in damages for negligence in lighting; negligence in allow-
    "ing gas or electricity to escape; negligence in putting posts in
    " a highway without warning, and negligence in placing traps and
    " dangers in the streets and not lighting them at night. But they
    " are not liable merely because in the exercise of their discretion
    " which they do not light, or because they discontinue lighting, dangers
    " which they have not themselves created." Atkin L.J, (as he then
    was said: "There is no duty to exercise the power of lighting
    " at all. Nor, if the Local Authority do light, are they obliged to

    4 [14]

    " light the whole of their district or any particular part of it. They
    " are under no duty to light all dangerous places, or any dangerous
    " place; and if they do light a dangerous place for part of the
    " night, they are not bound to light it during the whole night.
    " In this particular case the Local Authority did not cause the
    " danger; it was already in existence."

    My Lords, I have ventured to cite these passages at some
    length because they seem to lay down a principle which in 'my
    opinion is a thoroughly sound one. It is this: 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. If in the exercise of their dis-
    cretion they embark upon an execution of the power, the only duty
    they owe to any member of the public is not thereby to add to
    the damages that he would have suffered had they done nothing.
    So long as they exercise their discretion honestly, it is for them
    to determine the method by which and the tune within which and
    the time during which the power shall be exercised; and they can-
    not be made liable, except to the extent that I have just mentioned,
    for any damage that would have been avoided had they exercised
    their discretion in a more reasonable way.

    In the present case the Appellants in the exercise of their dis-
    cretion selected, and for some time persisted in, a method of re-
    pairing the breach in the Respondents' wall that no reasonable per-
    son would have adopted. I am willing to assume that the result
    of this was that the Respondents were damaged by reason that
    the sea water entered and remained upon their marsh land for a
    longer period than it would have done had the Appellants
    adopted the best method of effecting the repair. No one, how-
    ever, can question, or has attempted to question, the Appellants'
    honesty, and in my opinion they cannot be made responsible for
    that damage. This was the view of the matter that commended
    itself to du Parcq L.J., and I respectfully agree with him. I
    would like in particular to express my concurrence in the follow-
    ing passage in his judgment: 'The law would perhaps be more
    " satisfactory, or at any rate seem more satisfactory in some hard
    " cases, if a body which chose to exercise its powers were regarded
    " as being in exactly the same position as one upon which an Act
    " of Parliament imposed a duty. On the other hand, it must be
    " remembered that when Parliament has left it to a public autho-
    " rity to decide which of its powers it shall exercise, and when
    " and to what extent it shall exercise them, there would be some
    " inconvenience in submitting to the subsequent decision of a jury,
    '' or judge of fact, the question whether the authority had acted
    " reasonably, a question involving the consideration of matters of
    " policy and sometimes the striking of a just balance between the
    " rival claims of efficiency and thrift."

    My Lords, for these reasons I would allow the Appeal.

    Lord
    Chancellor

    Lord Atkin

    Lord

    Thanker-

    ton

    Lord
    Somer

    Lord
    Porter

    [15]

    EAST SUFFOLK RIVERS CATCHMENT BOARD

    v.
    KENT AND ANOTHER

    Lord Porter

    MY LORDS,

    In this case I have had the advantage of reading the opinion
    delivered by my noble and learned friend Lord Romer, and if we
    were not differing from the views of the Court of Appeal I should
    be content to agree with the opinion he has expressed. Inasmuch,
    however, as I think that the Appeal should be allowed, I consider it
    desirable that I should state very shortly why I have arrived at
    that conclusion.

    It is common ground that an Act of Parliament may either
    impose a duty upon a public or other body or may grant them
    powers to do an act without creating any obligation upon them
    to undertake the task. It is conceded that whereas in the former
    case a body upon whom a duty is imposed must fulfil it with due
    care and expedition, in the latter case there is no obligation upon
    the body to do anything at all. If they choose for any reason
    which commends itself to them to leave the task unperformed no
    remedy can be obtained nor can any action be taken against them
    unless a right to do so is given by the Act which grants the power, or
    by some other Act.

    In the present case the Land Drainage Act, 1930, by the com-
    bined effect of sections 6 and 34 gave power to a Catchment Board
    to maintain existing works, that is to say to drain, repair or other-
    wise maintain in a due state of efficiency any existing watercourse
    or drainage work, but imposed no duty to do so. If the Appellants
    had taken no action when the Respondents' bank was broken and
    their land was flooded, no complaint could have been made nor
    indeed could any steps have been taken though the Appellants
    had delayed before taking action, however long the delay might
    have been. All this is admitted on behalf of the Respondents, but
    it is contended that once the Appellants chose to intermeddle by
    undertaking the work they then were in the same position as if
    a duty had originally been imposed upon them. A power exercised
    is said to be the same as a duty imposed. In the present case the
    Appellants did undertake the task of repairing the breach and I
    see no reason for differing from the finding of the learned Judge
    and of the Court of Appeal that in carrying out the work they
    acted negligently and slothfully. If then their acceptance of the
    task imposed a liability to carry it put with care and circumspection,
    I should hold them liable for failure to perform what they had
    undertaken.

    Once they had taken action it was, I think, clear that they were
    under some obligation to the owner of the land upon which their
    operations were being carried out. The question is not as to its
    existence but as to its extent.

    The Appellants acknowledged their liability for any damage
    directly due to the action which they took. Under a proper
    plea, they said, an increase in the amount of soil scoured out by
    the ebbing and flowing of the flood or damage caused by sacks
    and soil spread over the Respondents' land due to the Appellants'
    activities would form a proper head of damage, but no such claim
    was made; the only loss complained of was that owing to the
    negligent delay in repairing the breach, the Respondents' land was
    flooded for a longer period than it should have been.

    2 [16]

    Damage caused by anything negligently done by the Appellants
    in the course of the exercise of their power which would not have
    occurred if they had refrained from exercising it at all would
    undoubtedly have to be made good on the principles set out in the
    well-known words of Lord Blackburn in Geddis v. Proprietors of
    Bann Reservoir
    (1878) 3 A.C. 430 at p. 455, already quoted by Lord
    Romer; but where, as here, the damage was not caused by any;
    positive act on the part of the Appellants but was caused and
    would have occurred to the like extent if they had taken no steps
    at all, I cannot see that the loss which the Respondents suffered
    was due to any breach of a duty owned by the Appellants. Their
    duty was to avoid causing damage, not either to prevent future
    damage due to causes for which they were not responsible or to
    shorten its incidence. The loss which the Respondents suffered was
    due to the original breach, and the Appellants' failure to close it?
    merely allowed the damage to continue during the time which they
    took in mending the broken bank. For that I do not think them
    liable nor can I find any case the decision in which would lead
    to that result.

    The principle expressed by Lord Blackburn does not depend
    upon his statement alone, it is to be found in cases decided before
    his time and has been repeated many times since. Indeed in the
    other case referred to by my noble and learned friend, Sheppard
    v. Glossop Corporation (1921) 3 K.B. 132, Scrutton L.J. says at

    p. 145: —

    " But it is going far beyond Lord Blackburn's dictum to
    " say that because, when an option is given by statute to an
    " authority to do or not to do a thing and it elects to do the
    " thing and does it negligently, it is liable, therefore it is liable
    " if it elects not to do the thing which by the statute it is not
    " bound to do at all."

    " Because an authority elects to do a thing and does it
    " negligently it is liable," says Scrutton L.J. " An action does lie
    " for doing that which the Legislature has authorised if it be done
    " negligently," says Lord Blackburn.

    But in each case the words must be read with reference to the
    matter which was being decided and the sense in which they were
    used is illustrated by the passage immediately preceding that which
    I have quoted from Scrutton L.J.: —

    " Lord Blackburn's words are addressed to negligence in
    " the direct operation of the powers conferred and undertaken;
    " for instance if the Appellants chose to light by electricity and
    " laid defective wires near to the main gaspipes in their district
    " and so caused an explosion, that would be a negligent exercise
    " of their powers; or if they placed a refuge in a crowded street
    " and omitted to light it properly, that might be doing
    " negligently that which the Legislature authorised."

    It is damage caused by negligently doing the act authorised,
    not damage which is not prevented because the act has not been
    done or has not been done efficiently or in time which is under
    consideration. If those who are authorised but not enjoined to act
    could be successfully sued for a failure to exercise their power I
    should have thought it unlikely that they would undertake the
    permitted task, since to do so would be to invite an action at the
    suit of any person who considered that they had not acted with
    due vigour and care.

    The result might well be that in circumstances like those under
    consideration action would not be taken where immediate action
    was necessary. A local authority faced by such a series of disasters
    as occurred in the present case might consider that the flooded land
    was not very valuable, but that they were justified in making an


    [17] 3

    attempt to clear it of water provided the expense was not serious
    and think that the expenditure of some small sum would not be
    too great in an attempt to prevent the damage. In such a case,
    with their eyes fully open to the possibility of failure, they might
    think they were entitled to take a chance or remedying the position
    with that limited expenditure but would not feel justified in doing
    the work in some way which would ensure its success but at a
    great cost. If the Respondents be right such a decision could never
    be made safely since the local authority by acting would expose
    themselves to the risk of an action for damages at the suit of a
    third party claiming that having undertaken the task the body to
    whom power had been given must continue with the work until
    it reached a successful conclusion though the expense would far
    exceed the value of the land they would thus have saved.

    If to undertake the work were to accept the responsibility for
    completing it with due care and with reasonable dispatch, no
    prudent authority could safely act at all .except in a case where
    certainty of success at a limited cost could be guaranteed. I do
    not say that these were the considerations which influenced the
    Appellants in the present case, but the example given does, I think,
    illustrate the danger of acceding to the argument put forward on
    behalf of the Respondents.

    I should add that under the Act in question, if the local body
    fail to take action in a case where it is thought that they properly
    ought to do so, there is power for the person aggrieved, under
    section 2 of the Act, to apply to the Secretary of State for an order
    that they carry out such work as he instructs them to do.

    I also desire to make it clear that in what I have said I am not
    dealing with a case in which it was contended that the authority
    were stopped from alleging that they were under no obligation to
    do the work efficiently and with reasonable dispatch. No evidence
    was given nor was there any plea that the Appellants by their;
    action had caused either of the Respondents to change his position
    in reliance upon anything which they had said or done. Such a
    case must wait for decision until facts are alleged and proved such
    as would create an estoppel.

    The sole question in the present case is whether the mere
    undertaking of a task which the Legislature has empowered an
    authority to do puts them in the same position as if that task had
    been imposed as a duty upon them. I agree that it does not and
    would allow the Appeal.

    (11077) Wt 8094 - 28 20 3/41 D.L, G. 338


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