Local Authorities' Duties of Care: Anns v. Merton Council and Negligence Law, Study notes of Law

Download Local Authorities' Duties of Care: Anns v. Merton Council and Negligence Law and more Study notes Law in PDF only on Docsity! AN END TO THE SHORT REIGN OF ANNS 1 AN END TO THE SHORT REIGN OF ANNS: THE CONTRACTED LIABILITY OF LOCAL AUTHORITIES IN AUSTRALIA FOR DEFECTIVE STRUCTURES D.G. Gardiner* 1. Introduction The activities of local authorities are diverse and many involve those in respect of which such authorities may be considered by their conduct to expose themselves to duties of care in negligence in ways no different from other individuals and bodies, notwithstanding the statutory settings for the existence of such bodies. Thus local authorities owe duties of care as employers to their employees;1 duties of care as occupiers to entrants2 (and today as neighbours who happen to be occupiers3); duties of care as suppliers of information;4 duties as controllers or owners of property;5 or simply because a duty is created from their conduct.6 The assimilation of duties owed by such bodies with those of ordinary individuals reflected much wider developments in the field of public law a century ago, including the abandonment of the immunity of the Crown. As Lord Blackburn said in 1878: For 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 authorized 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 authorized if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by the 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.7 However, the character of local authorities as bodies entrusted by statute with functions to be performed for public purposes and in the public interest necessitated a balancing between the application of the law of negligence and the necessary freedom from liability in some circumstances because of the different public nature of such bodies. The issue of liability in respect of negligent building control, approval and inspection has provided an area of particular concern because it raises important and difficult questions. Firstly, whether in giving approval to construction the authority owes a duty of reasonable care to ensure construction is in conformity with the approval and secondly, whether it owes a duty to decide whether to make inspections. These questions go to the very misfeasance/non-feasance dichotomy and the general rule was thought to be that an * B.A., LL.M. (Syd), Barrister-at-Law, Principal Lecturer in Law, Queensland Institute of Technology. 1. Anderson v. City of Enfield (1984) 54 L.G.R.A. 69. 2. Thompson v. Bankstown Corporation (1953) 87 C.L.R. 619; Voli v. Inglewood Shire Council {1963) 110 C.L.R. 74; Gericke v. Municipality of Peterborough [1984] 36 S.A.S.R. 499. 3. Hackshaw v. Shaw (1985) 59 A.L.J.R. 156 and Papantonakis v. The Australian Telecommunications Commission ( 1985) 59 A.L.J.R. 201, discussed in P. Gerber, "Occupiers' Liability — New Developments" (1985) 59 ALJ 250; D.G. and S.J. Gardiner, "Occupiers as Neighbours — The Final Step?', (1985) 15 Q.L.S.J. 91. 4. Treated as a separate body of rules in respect of economic loss suffered as a result of the negligent supply of advice or information: Hull v. Canterbury Municipal Council [1974] 1 N.S.W.L.R. 300; G.J. Knight Holdings Pty. Ltd. v. Warringah Shire Council [ 1975] 2 N.S.W.L.R. 795; L. Shaddock and Associates Pty. Ltd. v. Parramatta Citv Council (1981) 150 C.L.R. 225; Smith v. Shire of Murray (1985) 54 L.G.R.A. 246. 5. Aiken v. Kingborough Corporation (1939) 62 C.L.R. 179. 6. Knight v. Sheffield Corporation [1942] 2 All E.R. 411. 7. Geddis v. The Proprietors of Bann Reservoir ( 1878) 3 App. Cas. 430 at 455-456. 2 QLD. INSTITUTE OF TECHNOLOGY LAW JOURNAL authority could be liable for misfeasance (e.g. if it actually carried out an inspection negligently) but not for non-feasance.8 Thirdly, they may raise the problem of classification of damage as pure economic loss which involves a separate set of problems within the evolving law of negligence.9 A line of English authorities in the 1970's appeared to herald in the framework for an expanded liability of local authorities in respect of builing approval and inspection. They commenced with the encouragement provided in Home Office v. Dorset Yacht Co. Ltd10 to the recognition of duties in respect of the supervisory functions of public authorities. The impetus was accelerated in Dutton v. Bognor Regis Urban District Council1 and culminated in the decision of the House of Lords in Anns v. Merton London Borough Council,12 which was taken as having settled not only the parameters for the liability of local authorities in respect of building control and inspection, but the fundamental approach to the existence of duties of care in any negligence action. The influence of Anns was short lived and came to an end, for Australian purposes, with the High Court's decision in Sutherland Shire Council v. HeymanJ3 As part of the High Court's current reworking of the fundamentals of negligence, the case not only put an apparent end to the influence of Anns in respect of the proper approach to duties of care, but reduced significantly the extent of the liability of local authorities so readily found by the House of Lords just seven years previously. The purpose of this article is to consider An ns and its impact and the reasoning of the High Court in Heyman which brought about its demise. 2. Anns v. London Borough of Merton (a) The Facts Building work on a block of eight flats was completed in 1962 and they were leased out on long term leases by the owner/builder. Some eight years after completion there were structural movements resulting in a variety of defects ranging from cracked walls and sloping floors to sticking doors. In 1972 lessees of seven of the flats sued the builders and the local authority, alleging in the case of the latter, that its predecessor had approved plans requiring foundations with a minimum depth of three feet whereas those used were only two feet six inches, and that the authority was negligent in either omitting to inspect or failing to discover the inadequacy of the foundations during such inspections as were carried out. Two of the plaintiffs were original lessees, the other five having had the original leases assigned to them. (b) Establishment of the General Approach to Duty In a landmark decision, Lord Wilberforce14 adopted a two stage approach to the question of the existence of a duty of care. He said: Through the trilogy of cases in this House — Donoghue v. Stevenson [1932] AC 562, Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [ 1964] AC 465, and Dorset Yacht Co. Ltd v. Home Office [1970] AC 1004, the position has now been reached that in order 8. East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74 per Lord Romer at 102. That is assuming also the authority is acting intra vires, although it is clear that simply because it acts ultra vires that will not necessarily mean negligence: Dunlop v. Woollahra Municipal Council (No. 2) (1981) 33 A.L.R. 621. 9. See P. Craig, 'Negligent Mis-statements, Negligent Acts and Economic Loss', (1976) 92 L.Q.R. 213; R. Hayes, 'Duty of Care and Liability for Pure Economic Loss', (1979) 12 Melb. U.L.R. 79; D. Partlett, 'Recovery of Economic Loss for Negligence in Australia', (1980) 9 Syd. L.R. 121; J.A. Smillie, 'Negligence and Economic Loss, (1982) 32 U. Toronto L.J. 231; D. Partlett, 'Economic Loss and the Limits of Negligence', (1986) 60A.L.J. 64. 10. [1970] A.C. 1004. 11. [ 1972] 1 Q.B. 373 refusing to follow Bottomley v. Bannister [ 1932] 1 K.B. 458 and overruling Otto v. Bolton and Norris [1936] 2 K.B. 46. 12. [1978] A.C. 728; hereafter 'Anns'. 13. (1985) 59 A.L.J.R. 564; (1985) 60 A.L.R. 1; hereafter 'Heyman" and references are to 60 A.L.R. 14. A speech concurred in by Lords Diplock, Simon and Russell. AN END TO THE SHORT REIGN OF ANNS 5 The conclusion, that if an inspection was made and there was a failure by the inspector to discover the breach of by-laws, then the authority would be vicariously liable, is unobjectionable. But the reasoning that even in the absence of inspection the authority owed a duty to exercise reasonable care to ensure by-laws were enforced because such failure was a breach and ultra vires29 broke new ground, for it recognised that a local authority exercising statutory powers might be liable for non-feasance as distinct from the clear case of misfeasance in the operational functions of actual inspection. Lord Salmon,30 alone in dissent on that issue, held that the authority was under no obligation to inspect the foundations of all buildings and if there was no inspection before foundations were covered up, the plaintiffs would fail. This view was consistent with the misfeasance/non-feasance dichotomy in the context of powers. (e) To Whom was the Duty Owed? Lord Wilberforce held that \ . . if the foundations are covered in without adequate depth or strength as required by the by-laws, injury to safety or health may be suffered by owners or occupiers of the house. The duty is owed to them, not of course to a negligent building owner, the source of his own loss. . . A right of action can only be conferred on an owner or occupier who is such when the damage occurs... This disposes of the possible objection that an endless, indeterminate class of potential plaintiffs may be called into existence'.31 The cause of action was said to arise not upon delivery or conveyance of the defective structure but when the state of the building is such that there is present or imminent danger to the health or safety of persons occupying it.32 (f) The Standard of Care Lord Wilberforce recognised33 that the nature of the duty and standard of care required is closely related to the purpose for which powers of inspection are granted, in this case to secure compliance with the by-laws. Accordingly, the duty was to take reasonable care, no more, and no less, to secure that the builder does not cover in foundations which do not comply with by-law requirements.34 (g) Causation Although Lord Wilberforce did not deal with causation explicitly, it was implicit that failure by the local authority to take reasonable care to secure compliance with the by-laws was a cause of the damage. Lord Salmon in dissent said: In the present case, however, the loss is caused not by any reliance placed by the plaintiffs on the council or the building inspector but by the fact that if the inspection had been carefully made the defects in the foundations would have been rectified before the erection of the building was begun . . ,35 29. Ibid, at 755, 760. 30. Ibid, at 762. 31. Ibid, at 758. Interpreted correctly as excluding a duty to subsequent purchases: B. Conrick, infra n. 106 at 84. 32. Agreeing with the Court of Appeal decision in Sparham-Souter v. Town and Country Development (Essex) Ltd [1976] Q.B. 858. Subsequently in Pirelli General Cable Works Ltd v. Oscar Faber and Partners [ 1983] 2 A.C. 1, the House of Lords disagreed with the reasoning in Sparham-Souter and held that the cause of action did accrue when damage occurred, whether it was discovered or discoverable or not. Lord Fraser whose speech was agreed in by the other Lords, held also that the duty of the builder and of the local authority was owed to owners of the property as a class, and that if time runs against one owner it also runs against all his successors in title. The attempt to reconcile Lord Wilberforce's views in Anns by restricting it to the particular duty resting upon the defendants as the local authority as being different from the duty resting upon the builders is unconvincing for, without necessarily agreeing in substance, but consistent with the particular ratiocination, the damage will arise and time run against the first and all successors in title, consistent with Lord Fraser's principal holding. See infra n.106. 33. Supra n.12 at 758. 34. Ibid. To the extent that the pleadings were based upon non-compliance with the plans, they were misconceived. 35. Ibid, at 769. 6 QLD. INSTITUTE OF TECHNOLOGY LAW JOURNAL (h) The Nature of the Damage and Recoverable Damages The relevant damage was classified as 'material, physical damage'36 and the recoverable damages were the 'amount of expenditure necessary to restore the dwelling to a condition in which it is no longer a danger to the health or safety of persons occupying and possibly (depending on the circumstances) expenses arising from necessary displacements'.37 3. The Impact of Anns Both the decision and Lord Wilberforce's reasoning provoked a degree of criticism in academic writings.38 To some, the width of the first stage in the general approach to duty would import through the concept of foreseeability an easily satisfied prima facie duty, a test which might not be appropriate in the context of some duty situations.39 It has been criticised also as 'artificial and unrealistic.'40 The case was open to criticism also on the basis of its overturning of what was thought to be a general rule that local authorities were liable for misfeasance but not for failure to exercise a mere power entrusted to them i.e. for non-feasance. The conversion of the statutory power in the case itself into a common law duty seems not to have been based convincingly upon the very approach to duty which Lord Wilberforce advocated. Notwithstanding such criticism, the influence of the decision was considerable, for it provided an advantageous flexibility forjudges at a time when there was a judicial trend towards general principle and away from categorised formal rules.41 In Canada, the general approach was adopted in a number of cases42 as was the actual decision in respect of liability for inaction or non-feasance, at least so far as based upon failure to consider properly whether to act to prevent completion.43 In New Zealand, Anns was applied44 often without much discussion, and sometimes to do away with special rules developed for particular category situations such as negligent advice.45 In England, the two stage approach was employed in a number of important cases46 and the decision and reasoning in Anns applied in a number of local authority contexts.47 Of special note is the subsequent treatment accorded Anns in Governors of 36. Ibid, at 759. This classification remains the accepted one: Wollongong County Council v. Fregnan [1982] 1 N.S.W.L.R. 244; Tate and Lvle Industries Ltd v. Greater London Council [1983] 2 A.C. 504. 37. Ibid. 38. R. Bruxton, 'Built Upon Sand', (1978) 41 M.L.R. 85; I Duncan Wallace, 'Tort Demolishes Contract in New Construction (1978) 72 L.Q.R. 60; E. Banakas, 'Defective Premises — Shall the Ratepayer Foot the Bill? [1977] Camb L.J. 245. 39. D. Partien, 'Professional Negligence', (1985), at 388. 40. J. Smillie, 'Principle, Policy and Negligence', (1984) 11 N.Z.U.L.R. 111 at 141. 41. Allied Finance and Investments Ltd v. Haddow and Co. [1983] N.Z.L.R. 22 at 34 per McMullin J. 42. Bowen v. City of Edmonton (1977) 80 D.L.R. (3d) 501; Ordog v. District of Mission (1980) 110 D.L.R. (3d) 718; Barrattv. District of North Vancouver (\9S0) 114 D.L.R. (3d) 577; Divers field Holdings Ltd v. The Queen in Right of the Province of British Columbia (1982) 143 D.L.R. (3d) 529. 43. Nielsen v. City of Kamloops (1984) 10 D.L.R. (4th) 641 affirming by majority (1981) 129 D.L.R. (3d) 111. 44. Takaro Properties Ltd v. Rowling supra n. 25; Mount Albert Borough Council v. Johnson [ 1979] 2 N.Z.L.R. 234; Port Underwood Forests Ltd. v. Marlborough County Council [ 1982] 1 N.Z.L.R. 343; Morton v. Douglas Homes Ltd[ 1984] 2 N.Z.L.R. 548. 45. Meates v. Attorney-General [1983] N.Z.L.R. 308. 46. By Lord Wilberforce himself in McLoughlin v. O'Brian [1983] 1 A.C. 410 at 420; and in Junior Books Lid v. Veitchi Co. Ltd [1983] 1 A.C. 520 in the leading speech of Lord Roskill. 47. Dennis v. Charnwood Borough Council [ 1983] Q.B. 409 (passing plans for concrete raft foundations); Acrecrest Ltd v. W.S. Hattrell and Partners [1983] Q.B. 260 (specification by inspector of inadequate corrections to foundations) and see Fellowes v. Rother District Council [ 1983] 1 All E.R. 573; Rimmer v. Liverpool Citv Council [1985] 1 Q.B. 1. AN END TO THE SHORT REIGN OF ANNS 7 the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd.4* There the local authority approved plans for flexible drainage for a housing development. The plans were departed from by the use of rigid design drainage which proved unsatisfactory and had to be replaced. The departure was known of by the authority's inspector but not acted upon. In the Court of Appeal, Lawnton L.J. asked simply '. . . can Peabody rightly claim, as they have done, that Lambeth owed them a duty to require them to do that which they ought to have done anyway?'49 His answer was clearly 'No', although he did contemplate that if the drainage had not been put right, an occupier of the houses when completed who suffered injury to health could have sued the authority for breach of duty in failing to require compliance with the deposited plans. Fox L.J. expressly adopted the Anns two stage approach and negatived the duty at the second policy stage.50 The judgment of Slade L.J. was to like effect.51 The decision of the House of Lords was delivered by Lord Keith52 and showed a disinclination to accept Lord Wilberforce's two stage approach as definitive. Indeed, the temptation to do so was to be resisted.53 The true question in each case 'is whether the particular defendant owed to the particular plaintiff a duty of care having the scope which is contended for, and whether he was in breach of that duty with consequent loss to the plaintiff. A relationship of proximity in Lord Atkin's sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances.'54 In determining whether or not a duty of care of particular scope was incumbent upon a defendant it was 'material to take into consideration whether it is just and reasonable that it should be so.'55 It was not just and reasonable in this case 'because the purpose of avoiding such loss was not one of the purposes for which these powers were vested in them.'56 These views represent a movement away from what had became an almost automatic application of Lord Wilberforce's two stage approach. They represent the culmination of more recent growing concern at the width of the liability established by that process, together with changes in the composition of the Court permitting majority expression of the concerns.57 48. (a) [1985] 1 A.C. 210 (C.A.); (b) [1985] 1 A.C. 228 (H.L.). 49. Ibid, at 220. 50. Ibid, at 222 in taking up Lord Wilberforce's dicta in Anns supra n. 12 at 758 that it is not the purpose of the statute to protect owners who act negligently or irresponsibly and so cause themselves harm. 51. Ibid, at 226-227 'This particular power exists for the protection of other persons — not for the person in default.' 52. Agreed in by Lords Scarman, Bridge, Brandon and Templeman. 53. Supra n.48(b) at 240. 54. Ibid. 55. Ibid, at 241. 56. Ibid, at 242. 57. The narrowing of liability finds expression in other areas, including in particular those involving the contract/tort interplay. In Donoghue v. Stevenson [1932] A.C. 562 Lord McMillan stated at 609: two rival principles of the law find a meeting place where each has contended for supremacy. On the one hand, there is the well established principle that no one other than a party to a contract can complain of a breach of that contract. On the other hand, there is the equally well established doctrine that negligence apart from contract gives a right of action to the party injured by the negligence.' And at 610-611: 'The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the co-existence of a right of action founded on negligence as between the same parties . . . so much depends upon the avenue of approach to the question.' The current approach to the question in England is to set the clock back fifty-three years, at least in some circumstances, by denying liability in tort where the parties are in a contractual relationship: Candlewood Navigation Corporation Ltd v. Mitsui Osk Lines Ltd (1985) 60 A.L.R. 163; Tai Hing Cotton MillLtdv. Liu Chong Hing Bank Ltd [1985] 3 W.L.R. 317 esp. at 330. 10 QLD. INSTITUTE OF TECHNOLOGY LAW JOURNAL the second stage of the inquiry.64 Support for the antecedent stage of proximity was found in the Peabody case65 and in the judgment of Lord Roskill in Junior Books.66 The antecedent test of proximity is applicable only to those situations which have not already been recognised by the authorities as attracting a duty of care and the scope of which is unsettled: No trial judge need inquire for himself whether one motorist on the highway owes a duty to another to avoid causing injury to the person or property of the latter or what is the scope of that duty.67 With the exception of one question not presently relevant, Wilson J. agreed with the reasons of Gibbs C.J.68 Deane J. also confirmed his commitment69 to an antecedent requirement of proximity found in the original words of Lord Atkin in Donoghue v. Stevenson:70 . . . it differed in nature from the test of reasonable foreseeability in that it involved both an evaluation of the closeness of the relationship and a judgment of the legal consequences of the evaluation.71 Deane J. confirmed also the meaning of proximity as involving \ . . the notion of nearness or closeness and embraces physical proximity (in the sense of time and space) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained.'72 The identity and relative importance of the factors which are determinative of an issue of proximity are recognised as being likely to vary in different categories of case. But the requirement of proximity is not a question of fact, though based on fact, for it involves also an evaluation of legal consequences, thereby serving as a control of the categories of case in which the common law will adjudge that a duty of care is owed. It is a question of law which will include notions of what is fair and reasonable and considerations of public policy.73 Notwithstanding problems associated with duplication of consideration of the same factual material, perhaps for purposes of proximity, foresight and causation, this approach has the dual attraction of providing a process by which limitations on the existence of duty may be explained in a uniform way in new and developing areas rather than by disparate and independent formal rules. It is important also because it overtly addresses and explains policy factors involved in the process. Unlike Gibbs C.J. who interpreted Anns as recognising an antecedent proximity requirement, Deane J. found the approach in Anns did not contemplate such a requirement 64. Supra n. 13 at 14 referring to his similar approach in Jaensch v. Coffey ( 1984) 54 A.L.R. 417 at 419-20 and to the similar approach adopted by Rush J. in a 'clear and persuasive' judgment in Seale v. Perry [1982] V.R. 193 at 193-8; but contrast McGarvie J. in the same case at 227. For analysis of Jaensch v. Cojfev see ( 1985) 1 Q.I. T L J 69-78; (1985) 59 A.L.J. 45. 65. Supra n.48(b). 66. Supra n.46. 67. Supra n.13 at 14. 68. Ibid, at 36. 69. Jaensch v. Coffey Supra n.64 at 439 and repeated in Hackshaw v. Shaw Supra n.3. 70. Supra n.57 at 582, 599. 71. Supra n. 13 at 54. Deane J. cogently demolished the criticism levelled at the concept of'proximity' by Robert GofT L.J. in Leigh and Sullivan Ltd\. Aliakmon Shipping Co. Ltd[ 1985] 2 W.L.R. 289 at 326-7, that it does not provide a 'criterion of liability' or that it lacks 'ascertainable meaning', by emphasizing its importance as the unifying rationale of particular propositions of law which might otherwise appear to be disparate, and more importantly, because such criticism disregards its substance and true function. 72. Ibid, at 55 repeating his description in Jaensch v. Coffey supra n.64 at 441. 73. Ibid. AN END TO THE SHORT REIGN OF ANNS 11 and was accordingly, inappropriate in cases in the less developed areas of the law of negligence, such as where what is alleged is a negligent omission or of failure to act or where the damage has been purely economic in nature.74 Mason J. approached the duty question from the position of the authorities, identifying the general rule as being that a public authority is under no statutory obligation to exercise a power and comes under no common law duty to do so.75 The circumstances under which such authorities were found to be liable in negligence were based upon foreseeability but foreseeability of the plaintiffs reasonable reliance.76 Mason J. too was unable to accept much of what was said by Lord Wilberforce in Anns.11 Brennan J. approached the question of duty by emphasizing that foreseeability of injury was not the exhaustive criterion of duty, for otherwise the legal duty would be coterminous with moral obligation and the 'neighbour' of the law would include not only the biblical Samaritan but also the priest and levite who passed by the injured man.78 He also returned to Lord Atkin's seminal statement and found that my 'neighbour' in law was there restricted to a person who is affected 'by my act, not by my omission'.79 Brennan J. rejected foreseeability as sufficient to impose a duty to all to prevent injury: Some broader foundation than mere foreseeability must appear before a common law duty to act arises. There must also be either the undertaking of some task which leads another to rely on its being performed, or the ownership, occupation or use of land or chattels to found the duty.80 Accordingly, Lord Wilberforce's first stage in Anns was rejected for cases of non-feasance. Nor was Brennan J. any more impressed by the concept of proximity.81 It may have been open still for Brennan J. to apply Anns by holding that the broader foundation be introduced at the second qualification stage of Anns, but he appeared to reject that also: It is preferable, in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by undefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed"82 Although subsequently he explains the role of the second stage as embracing no more than the further elements which confine the duty of care within narrower limits than those which would be defined by an unqualified application of the neighbour principle.83 (ii) The Liability of Local Authorities in the Exercise of Duties and Powers Gibbs C.J. found the distinction between the area of policy and the operational area to be both logical and convenient.84 However, his Honour also found that as a general rule a failure to act is not negligent unless there is a duty to act.85 The decision in Anns 74. Ibid, at 62-3. 75. Ibid, at 28. 76. Ibid, at 30; supported by the American experience but also by its use in such contexts as negligent mis-statement in Shaddock v. Parramatta City Council supra n. 4. Brennan J. (at 42), referred to reliance as a factor necessary for duty beyond mere reasonable foresight and Deane J. (at 59), regarded it as a factor going to the necessary proximity. Gibbs C.J. referred to it (at 17), in the context of causation. 77. Ibid. 78. Ibid, at 41. 79. Ibid. 80. Ibid, at 42. 81. Ibid, at 43. 82. Ibid, at 43-44. 83. Ibid, at 44, repeating the explanation given in Jaensch v. Coffey supra n.64 at 437. 84. Ibid, at 14. 85. Ibid, at 16. 12 QLD. INSTITUTE OF TECHNOLOGY LAW JOURNAL could be reconciled only if it could be understood as recognising a duty arising from the statutory provisions to give proper consideration to the question whether it should exercise the powers. The plaintiffs failed in Heyman only because they failed to discharge the onus, which is not a light one, that the authority was negligent in failing to consider the exercise of the power.86 Mason J. held that there was no reason why a public authority should not be subject to a common law duty of care in appropriate circumstances in relation to failing to perform its functions except in so far as its policy making and perhaps, its discretionary decisions are concerned.87 However, his Honour did not accept the decision in Anns in so far as it imposed a duty for failure to give proper consideration to the question whether the power of inspection should be exercised or not. . . . although a public authority may be under a public duty enforceable by mandamus, to give proper consideration to the question whether it should exercise a power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of power. Mandamus will compel proper consideration by the authority of its discretion, but that is all.88 Brennan J. expressed a similar opinion in distinguishing a statutory power from a statutory duty, the former giving rise to a duty only where the statute imposes a duty to exercise the power and confer a private right of action. A consideration of the legislative materials indicated that Parliament did not intend to impose any relevant duty other than that in respect of S.317A. Further reflecting classical orthodoxy, it was: . . . not open to the court to remedy a supposed deficiency by superimposing a general common law duty on the council to prevent any damage that future purchasers of property might suffer in the event of a non exercise or a careless exercise of the statutory powers. To superimpose such a general common law duty on a statutory power would be to "conjure up" the duty in order to give effect to judicial ideas of policy.89 Finally, Deane J. also classified the relevant powers and functions as of a routine administrative or operational nature.90 But there was not the requisite proximity sufficient to give rise to a duty because the relevant provisions did not contemplate among their purposes protection from the kind of damage91 nor was there any other reason in principle, policy or justice why the general body of rate payers should bear the loss.92 (iii) Causation and the Failure to Avert the Damage Gibb C.J. found it unnecessary to address the question of causation in detail but he did comment upon one aspect of causation which may pose practical problems for prospective plaintiffs. His Honour was disposed to recognise a basic difference between causing something and failing to prevent it happening. When the damage has resulted from negligent failure to act, there may be additional difficulties associated with proof of causation.93 But as Mason J. commented, the fact that breach of the duty takes the form of a negligent 86. Ibid, at 19. 87. Ibid, at 34. Whilst the distinction was recognised as being difficult to formulate, decisions which involve or are dictated by financial, economic, social or political factors or constraints were held to be beyond the scope of a duty. It is important to note also that Mason J. recognised the second meaning of 'discretion' accorded by Wilberforce L.J. (supra n.27) as potentially exclusionary of a duty. 88. Ibid, at 31. 89. Ibid, at 45. 90. Ibid, at 57. 91. Ibid, at 64. 92. Ibid, at 65-6. 93. Ibid, at 17.