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Published online by Cambridge University Press: 24 January 2025
The relationship between ultra vires and negligence in a statutory body has become important as a result of recent House of Lords decisions. In this article this relationship is examined and found to contain some serious difficulties. A solution to these difficulties is proposed.
1 [1977] 2 W.L.R. 1024.
2 [1964] A.C. 465.
3 (1931) 174 N.E. 441.
4 Id. 444.
5 (1968) 122 C.L.R. 556.
6 Id. 566.
7 Although their Lordships concentrated on defining the special relationship that must exist as a prerequisite to liability for negligent statements, the fact that the claim was for economic loss must have had its influence. It has not been said that there needs to be a special relationship in relation to negligent statements leading to physical loss: Clayton v. Woodman & Son (Builders) Ltd [1962] 2 Q.B. 533
8 [1951] 2 K.B. 164, 184.
9 [1964] A.C. 465, 509.
10 [1972] 1 Q.B. 373.
11 [1970] 2 Q.B. 223.
12 Craig, , “Negligent Misstatements, Negligent Acts and Economic Loss” (1976) 92 L.Q.R. 213, 223.Google Scholar
13 [1971] 1 Q.B. 337.
14 [1973] Q.B. 27.
15 [1974] 1 N.S.W.L.R. 300.
16 [1975] 2 N.S.W.L.R. 796.
17 (1976) 11 A.L.R. 227.
18 Wallace, Duncan, “From Babylon to Babel, or a New Path for Negligence?” (1977) 93 L.Q.R. 16, 21.Google Scholar
19 Note,(1973) 47 A.L.J. 332.
20 [1972] 1 Q.B. 373, 396.
21 Craig, loc. cit.
22 [1977] 2 W.L.R. 1024, 1039.
23 [1972] 1 Q.B. 373, 396.
24 [1976] 1 Q.B. 858.
25 [1976] 1 Q.B. 882.
26 Wallace, Duncan, “Tort Demolishes Contract in New Construction”(1978) 94 L.Q.R. 60, 64-66Google Scholar argues that this aspect of the decision has some unforeseen difficulties. These stem from the fact that, in many cases of this sort, the damage will not necessarily manifest itself, yet the defect is known about. In such cases it is very difficult to pinpoint the commencement date of the limitation period.
27 [1932] A.C. 562.
28 [1970] A.C. 1004.
29 [1977] 2 W.L.R, 1024, 1032.
30 Ibid.
31 Id. 1034.
32 Ibid.
33 Ibid.
34 Ibid.
35 [1972] 1 Q.B. 373, 392.
36 [1977] 2 W.L.R. 1024, 1035.
37 Ibid.
38 [1941) A.C. 74.
39 [1977] 2 W.L.R. 1024, 1036.
40 Id. 1037.
41 (1878) 3 App. Cas. 430. Other examples (of many): Great Central Railway v. Hewlett [1916] 2 A.C. 511, 519; Fisher v. Ruislip-Northwood Urban District Council [1945] K.B. 584.
42 [1941] A.C. 74, 85 per Viscount Simon L.C.; 88 per Lord Atkin; 95 per Lord Thankerton; 99, 102 per Lord Romer; 104 per Lord Porter.
43 [1970] A.C. 1004, 1066-1070.
44 Id. 1069. It is worth noting here that ultra vires covers a variety of situations. For instance in the present context, the Borstal officers could have acted ultra vires by disregarding instructions which were themselves intra vires;or by carrying out instructions which themselves were ultra vires.
45 [1977] 2 W.L.R. 1024, 1035.
46 Ibid.
41 Ibid.
48 Id. 1037.
49 Id. 1038.
50 Id. 1037.
51 Ibid.
52 [1970] A.C. 1004, 1031.
53 Id. 1066. Italics added. This reasoning is appropriate at the very operational level, as in a case like Geddis. But is it appropriate simply to transpose it to a quite different level where the statutory task involves discretion and the word “negligence” takes on a rather artificial and technical meaning? This transposition is at the root of the difficulties in this whole discussion. This point will be discussed further below.
54 [1977] 2 W.L.R. 1024, 1038.
55 [1970] A.C. 1004, 1070.
56 [1945] K.B. 584.
57 [1977] 2 W.L.R. 1024, 1038.
58 Id. 1039.
59 [1973] 6 W.W.R. 692, 715.
60 [1977] 1 N.Z.L.R. 394.
61 Id. 411 per Richmond P.; 422 per Woodhouse J.; 425 per Cooke J.
62 [1947] A.C. 265, 280.
63 [1977] 2 W.L.R.1024, 1046.
64 Id. 1050.
65 [1972] 1 Q.B. 373, 392-394.
66 [1932] 1 K.B. 458.
67 [1977] 2 W.L.R.1024, 1039. This passage was cited with approval and applied in Batty v. Metropolitan Property Realizations Ltd [1978] 2 All E.R. 445, 457, a case in which the Court of Appeal (Megaw, Bridge and Waller L.JJ.) found both a builder and a development company liable in tort for damage suffered by the owners of a house which was doomed due to unstable soil on which it was built.
68 [1977] 1 N.Z.L.R 394, 405 per Richmond P.; 418 per Woodhouse J.
69 (1976) 13 A.C.T.R. 14.
70 Hogg, , Liability of the Crown (1971) 85-86Google Scholar. Friedmann, , Law in a Changing Society (1959) 365CrossRefGoogle Scholar. This policy stance is sometimes called the rule in Everett v. Griffiths [1921] 1 A.C. 631.
71 (1969) 122 C.L.R. 249.
72 (1868) L.R. 3 H.L. 330.
73 Barwick C.J. (1969) 122 C.L.R. 249, 254-258. The discussion of fault in the context of aRylands v. Fletcher action may seem puzzling. Briefly, Barwick C.J. argued that, for the defendant to succeed in invoking the protection of the relevant statutory provisions with respect to a Rylands v. Fletcher claim, he must show that he has acted within the statute. To do this he must show that he carried out his tasks with due care because the legislation impliedly dictates that the gas company must act with due care. If he can do this, he has then shown that the damage was a consequence of the statutory tasks which due care and skill could not prevent. It was thus damage authorised by the legislation as being a consequence necessarily incidental to the carrying out of the statutory tasks.
As regards the onus of proof issue, the justices of the High Court were not unanimous.
74 On this distinction, compare Phegan, , “Public Authority Liability in Negligence” (1976) 22 McGill Law Journal 605, 613Google Scholar. Phegan states that “Decisions not to inspect and decisions not to repair are made at the planning stage; once inspection or repair is embarked upon, the activities become operational ... and no longer immune from judicial evaluation” (621). At no stage in this discussion is the ultra vires prerequisite mooted. (Phegan has adopted the American usage of “planning/ operational” rather than “discretionary/operational” used by Lord Wilberforce.)
75 East Suffolk Rivers Catchment Board v. Kent [1941) A.C. 74.
76 All that he said was that he was not prepared to distinguish the East Suffolk case on the basis of causation. He hinted that the Board's incompetence in that case was a cause of the damage: [1977) 2 W.L.R. 1024, 1036.
77 [1972) 1 Q.B. 373, 413.
78 Phegan, loc. cit.
79 Id. 617.
80 Similar misgivings are expressed by Buxton, , “Built upon Sand” (1978) 41 Modern Law Review 85, 89-90.Google Scholar
81 [1974] 1 N.S.W.L.R. 300.
82 [1975] 2 N.S.W.L.R. 796.
83 The exceptions to this are not material to the present discussion.
84 (1961) 105 C.L.R. 6.
85 [1974] 1 N.S.W.L.R. 300, 312.
86 Fleming, , The Law of Torts (5th ed. 1977) 115-116.Google Scholar
87 [1954] 1 W.L.R. 835.
88 [1946] 2 All E.R. 333.
89 Benjafield, and Whitmore, , Principles of Australian Administrative Law (4th ed. 1971) 302.Google Scholar
90 [1945] K.B. 584.
91 (1938) 158 L.T. 127.
92 Id. 129 and 130 respectively.
93 [1945] K.B. 584, 605-606.
94 (1969) 122 C.L.R. 249.
95 (1868) L.R. 3 H.L. 330.
96 (1933) 50 C.L.R. 108.
97 Buxton, loc. cit.
98 Private communication from Matthews & Co. of Sutton, England, solicitors for the plaintiffs.
99 I am grateful to Colin Phegan of Sydney University and to Professor Harold Luntz of Melbourne University for their advice and suggestions in connection with this article. The views, interpretations and errors are, however, entirely my own.