(f) &nbbsp;& &nsp; &nsp; &nnbp;& &nFailingiling to exto exercise any or any reasonable care towards the plaintiffs and other road users when he knewught ve knhat the
public wereerousinaccessible by they the plai plaintiffntiffs.’span>
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It is sufficiently clear from the averments and especially the particulars provided, that the plaintiff’s claim ied on what are claimed
to b to be `failure(s)’ on the 3rd defendants 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, `...... fundamentallnd in this area of law’’ in Stovin v. Wise [1996] UKHL 15; (1996) 3 ALL E.R. 801at 806 is further :
`...... based on a recognition that it t 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.
Lord Nicholls< later identifies several factors as relevant to a consideration of whether or not there are special circumstances for imposing a
duty of care on a statutory authority. These are (ibid at pp.812/813) :
`The subject matter of the statute ...... ; the int purpose of the statutory duty or power ...... ; whether a concurrent common law
duty mightmight 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 ......’
Lord Hoffman (in the majority) said in the same case at p.827 :
`Whether a statutory duty gives rise to a private cause of action is a question nstruction [see : Weldon vdon v. Home Office (1991) 3 ALL E.R. 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 lordshid :
`The same is true of omission to pera statutory duty. If such a duty does not give rise to a private right to sue for breach, ich,
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 ...... 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.’
/p>
Quite plainly the starting point for any discussion onsubject is the relevant legislative provisions relied upon upon by the plaintiff.
In this regard the plaintiff company without reference to any particular statutory pion, 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.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Under Part VI of the Act 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 extensive powers to execute necessary 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 Hoffman said (ibid at p.828) pan>
`...... the fact that Parliament has conferrdiscretion must be some indication that the policy oicy of the Act conferring the power was not to create a right to compensation. The need 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 E.R. 527 where his lordship said, after citing various passages from the judgments in Sheppard v. Glossorp Corporation (1921) 3 K.B.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 membethe public
by reason of a ff a failure to exercise that power.’
In the Roads Act (Cap.175) the position is in my view, made even mlear by the specific enactmnactment 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 the absence of any mention of a right to compensationthe `non-exercise’ of the powers conferred uned under the Act 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 nsation claims for any loss or damage sustained as a resultesult 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’.
Additionally, paragraph 6 of the Statement of Claim, as pleaded, appears to come within the first category oory of cases recognised in the judgment of Lord Browne-Wilkinson in X v. Bedfordshire CC (1995) 3 ALL E.R. 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’.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> 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 sory duty does not, by itself, give rise to any private caus 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 oeral application for the benefit of all membemembers 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 aintenance of public roads is a legitimate (even crucial) government function requiring
the 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 Nicolasne-Wilkinson V.C. (as he then was) in Lonrho Plc v. Tebbit (1991) 4 AL 4 ALL E.R. 973 at p.981 :
`...... it is well established that in cases the exercise of a statutory discretion involves the weighing of competing public interestsrests,
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 later at p.827 :
`It is one thing to provide a service at the public expense. It is another to require thlic to pay compensation when a failure to
provide the serviservice has resulted in loss ...... 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.’
/p>
and finally at p.832 his lordship said :
`In my view the creation of a duty of care upon a highway authority, ...... would inevitably expose the authority’s bary decisions
to judicial iial 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 similar concern was voiced by Lord Bridge in Murphy v. Brentwood D.C. (1990) 2 ALL E.R. 908 in which the House of Lords overruled in large part, an earlier decision in the leading case of Anns v. Merton London Borough Council [1977] UKHL 4; (1977) 2 ALL E.R. 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 with 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 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. 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 latter regard, paraphrasing what was said by Lord Hoffman inu>Stovin’s case (op.cit at p.833) :
`Drivers (and owners) of motor vehicles must take the highway network as they fin Everyone knows there are hare 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 damagehe plaintiff’s buses might be attributed to the condition of the public roads over which thch 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.
ass=MsoNormal stal style="text-align: justify; margin-left: .9pt; margin-top: 1; margin-bottom: 1"> Be that as it may, it is trite that foreseeability of loss is, by itself, aufficient foundation givingiving 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 E.R. 568 at 573-574].
Finally, even if it could be succesy argued that the Roads Act imposed a positive statutory duty on the Permanent Sent 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.
Furthermore what standard(s) is the Permanent Secretary required to meet or achieve in discharging his du repair and/or maintain pubn 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 thentiff’s claim against the 3rd and 4th defendants, as plas 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.
D.V. Fatiaki
: 1"> JUDGE
At Labasap class=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> 26th November, 2001.
HBC0014D.01B
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