Welton & Anor v North Cornwall District Council [1996] EWCA Civ 516 (17th July, 1996)

IN THE SUPREME COURT OF JUDICATURE CCRTF 95/0294/C
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE THOMPSON QC)
Royal Courts of Justice
Strand
London WC2
Wednesday, 17th July 1996
B e f o r e:
LORD JUSTICE ROSE
LORD JUSTICE WARD
LORD JUSTICE JUDGE
– – – – – –
VICTORIA FLORENCE WELTON
DAVID JOHN WELTON
Respondents/Plaintiffs
– v –
NORTH CORNWALL DISTRICT COUNCIL
Appellants/Defendants
– – – – – –
(Handed Down Transcript of Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
– – – – – –
MR P WADSLEY (for MR RL DENYER QC) (Instructed by Frank & Caffin, Truro, Cornwall) appeared on behalf of the Appellants/Defendants.
MR C KEMP (for MR P MOTT QC) (Instructed by Stephens & Scown, Cornwall, TR1 2PN) appeared on behalf of the Respondents/Plaintiffs.
– – – – – –
J U D G M E N T
(As approved )
– – – – – –
Crown copyright
Wednesday, 17th July 1996
J U D G M E N T
LORD JUSTICE ROSE: This is an appeal by the defendant council against a judgment of His Honour Judge Anthony Thompson QC sitting at Truro County Court on 26th January 1995. He awarded the plaintiffs, Mr and Mrs Welton, damages of £39,522 because of the conduct of a Mr Brian Evans who was employed by the defendants as an Environmental Health Officer. The appeal raises interesting questions as to whether, and if so in what circumstances, a duty of care is owed by a local authority in respect of its environmental health officers when they are purporting to exercise statutory powers in relation to food hygiene.
The facts, as found by the judge, are these. In 1975 the plaintiffs bought Archer farm, Port Isaac. After carrying out certain alterations they ran it for the next 15 years as a guest house, during the summer season from Easter to mid-October. Mrs Welton did the cooking. She had help in serving meals and cleaning. By 1990 there were 8 letting bedrooms providing accommodation for a maximum of 15 guests.
On 12th October 1990, when the season’s end was near and there were no guests, Mr Evans arrived, unsolicited and unannounced, to conduct the first ever local authority inspection of the premises. The West Country Tourist Board had carried out inspections several times, most recently in late 1990 and they had accorded the premises the highest available accolade – 3 Crowns. They had found, in particular, the kitchen to be clean, well-equipped and organised, the slate floor sealed and level and the tile surrounds and formica surfaces undamaged.
Mr Evans had a different view. He was an unsatisfactory witness whose diary and notebook had gone missing and whose evidence, save where it was unchallenged, the judge did not accept. The judge accepted Mrs Welton’s account of events, the main thrust of which was that, on 12th October, Mr Evans set out 13 requirements which were to be met in order to comply with the law. These involved substantial building works and major alterations to the kitchen (for which there was no need) and he coupled his requirements with a threat to close down the business if they were not met. In consequence, wholly unnecessary and excessive expenditure was incurred for which the judge awarded damages. He also awarded general damages for disruption of family life, inconvenience and future loss of capital on sale. The amount of damages awarded is the subject of appeal to this court but the parties have agreed that, if the judge was correct in awarding damages at all, the appropriate figure to be substituted for his award is £34,000.
Mr Evans’ principal requirements were that the laundry must be divorced from the kitchen, which required the building of an extension; the grouted but uncracked Delabole slate floor, which was in superb condition, must be taken up and replaced by continuous, impervious material to which neither re-pointing nor screeding was an acceptable alternative; the formica surfaces must be replaced, initially, he said, by stainless steel, but later, when Mrs Welton protested that she could not afford this, by new formica; new sinks must be provided for washing up and vegetable preparation, the ceiling beams must be infilled, the wall tiles must be replaced by aluminium or stainless steel cladding, all wooden surfaces must be painted or varnished, new refrigerators bought and labelled and the extractor fan replaced by hood and ducting for the cooker. Mrs Welton made a note of these matters at the time but none of them were reduced into writing by Mr Evans although he commended as a model the kitchen of a nearby, much larger, hotel. He also approved a layout plan prepared by Mrs Welton. The judge found as a fact that 90% of the work was unnecessary in order to comply with the relevant legislation and that the kitchen plan on which Mr Evans insisted was ill-conceived, inappropriate and less efficient than the previous layout.
A local builder, Mr Richards, was charged by Mrs Welton, reasonably as the judge found and time being of the essence, with the task of carrying out the works to the local authority’s satisfaction in order to enable the business to be re-opened the following Spring. Mrs Welton undertook the works as a consequence of the pressure exerted upon her by Mr Evans. Mr Evans knew that what he said would be relied on by the plaintiffs without independent enquiry and he visited to inspect and approve at least 4 or 5 times while the works were being carried out.
By April 1991 the works were largely completed and Mrs Welton wrote to the local authority seeking a final inspection in order to permit re-opening. The defendants wrote on 15th July 1991 in the following terms:
“It is this Department’s practice to always confirm any legal requirements in writing, and I can therefore only apologise for Mr Evans’ failure to do so in this case, particularly in view of your repeated verbal requests for written confirmation.
“You will appreciate that, in addition to pointing out works which are necessary to ensure full compliance in the short-term with statutory requirements, Environmental Health Officers also, during their inspections, often issue advice and make recommendations regarding additional works which, if carried out, will ensure that legal requirements continue to be met in the long-term and which may also facilitate improved food handling practices. In this regard, it is this Department’s policy to differentiate in writing between requirements and recommendations so that proprietors of food premises clearly understand the implications. This omission on Mr Evans’ part is very regrettable, and he has been made aware that any further errors of this sort well not be tolerated.”
There was further correspondence to which it is unnecessary to refer in detail. The judge drew inferences from it which were adverse to Mr Evans’ credibility and to the defendants’ case which was, in essence, that substantial refurbishment was Mrs Welton’s idea, that Mr Evans never threatened or had any reason to threaten closure and that the works were not carried out at his request, advice or insistence. The plaintiffs’ pleaded case was that there was a special relationship between Mr Evans and Mrs Welton which gave rise to a duty to take reasonable care in the statements he made as to the extent of the alterations required to comply with the law. It is the existence or otherwise of this duty which is at the heart of this appeal.
The legislative framework can be briefly identified. The Food Act 1984 (the 1984 Act”) applied until the end of 1990. From 1st January 1991 the Food Safety Act 1990 (“the 1990 Act”) applied. Under both Acts the local authority had power to enforce the legislative provisions in relation to hygiene by prosecution, summarily before the Magistrates with a right of appeal to the Crown Court or on indictment. Such prosecution could lead to the local authority obtaining a Closure Order against the premises. There was also power to obtain an Emergency Closure Order. The 1990 Act introduced a new, additional, mechanism for the service of an improvement notice by the local authority, specifying grounds for believing that the regulations are not being complied with: compliance with such a notice can avoid prosecution.
It is common ground that, under both Acts, the defendants were the local authority with the duty, susceptible to ministerial direction, to enforce the legislation, that Mr Evans was an “authorised officer” for this purpose and that the plaintiffs’ carried on a “food business” at the guest house to which the legislation applied. The relevant regulations are the Food Hygiene (General) Regulations 1970. Under both Acts an authorised officer of an enforcement authority has a right of entry to the premises at all reasonable hours to ascertain whether there is or has been a contravention of the Act and generally for the purposes of performing the authority’s functions under the Acts.
Section 44 of the 1990 Act, the terms of which are, in all material aspects, identical to those of Section 116 of the 1984 Act is in these terms:
“(1) An officer of a food authority is not personally liable in respect of any act done by him –
(a) in the execution or purported execution of this Act; and,
(b) within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it.
“(2) Nothing in subsection (1) above shall be construed as relieving any food authority from any liability in respect of the acts of their officers.
“(3) Where an action has been brought against an officer of the food authority in respect of an act done by him –
(a) in the execution or purported execution of this Act; but,
(b) outside the scope of his employment, the authority may indemnify him against the whole or a part of any damages which he has been ordered to pay or any costs which he may have incurred if they are satisfied that he honestly believed that the act complained of was within the scope of his employment.”
On behalf of the defendants, Mr Denyer QC, who did not appear below, makes the following submissions.
First, an Environmental Health Officer acting on behalf of a local authority exercises a police or quasi police function and therefore, as a matter of policy, no action should lie. He relies on Hill v Chief Constable of West Yorkshire [1989] AC 53 and in particular, the speech of Lord Keith at 63A to 64A, Alexandrou v Oxford [1993] 4 AER 328 per Glidewell LJ at 340J and per Slade LJ at 34 H, Osman v Ferguson [1993] 4 AER 344 per McCowan LJ at 353J to 354A, Ancell v McDermott [1993] 4 AER 355 per Beldam LJ at 362G-J and 366A-C. He concedes that the present case is not on all fours with the police cases, but, he says, similar policy considerations have been held to apply outside the police cases, in particular in relation to the CPS (see Elguzouli-Daf v Commissioner of Metropolitan Police 1995 QB 335). He accepts that in that case Steyn LJ at 348A said that Hill v Chief Constable of West Yorkshire did not mean:
“That the police may not be held liable in a case where there is some form of assumption of responsibility by them”
and that in Welsh v Chief Constable of Merseyside Police [1993] 1 AER 692, which the Court of Appeal in Elguzouli-Daf approved, Tudor-Evans J held the CPS to be arguably liable where they had assumed by conduct a responsibility to a particular defendant. But, he submits that, in the present case, in listing the 13 items, Mr Evans assumed a responsibility to act merely bona fide and not carefully.
Mr Denyer’s second submission, advanced in the light of Caparo v Dickman [1990] 2 AC 605, is that it is neither fair nor reasonable to impose a duty of care when an Environmental Health Officer is exercising a statutory responsibility in the interest of public health. He relies on Peabody v Parkinson [1985] AC 210 per Lord Keith at 242A-E: the purpose of avoiding economic loss was not one of the purposes for which the powers were vested in the local authority, notwithstanding that economic loss might reasonably have been foreseen. He also refers to Ryeford Homes v Sevenoaks DC [1989] 46 BLR 34 and Tidman v Reading BC [1994] 3 PLR 72 and distinguishes as “a very special case”, Swinney v Chief Constable of Northumbria, unreported, Court of Appeal transcript 22nd March 1996. In Swinney the plaintiffs had been threatened, as a result of the theft of sensitive information from a police car: it was held that the police were arguably liable for failing to take reasonable care to protect their informant’s identity, because an informant is in a special relationship with the police and the public interest in the police not being harassed by litigation, which underlies Hill v Chief Constable of West Yorkshire, was outweighed by the public interest in encouraging informants to provide information. Mr Denyer said his strongest case on this aspect was Mark Rich v Bishop Rock [1996] 1 AC 211. The House of Lords assumed that a sufficient degree of proximity existed but held that no action for negligence in examining a ship could be maintained by the cargo owner against an independent, non profit-making, classification society performing a role which would otherwise have had to be undertaken by the state, that role being to promote in the public interest, safety of life and ships at sea. By analogy, submits Mr Denyer, an Environmental Health Officer is acting for the collective welfare of the community and no liability in negligence should exist.
Mr Denyer’s third submission is that the present case is not within the principle of Hedley-Byrne v Heller 1964 AC 465. The particulars of negligence amount to no more than an allegation that Mr Evans, who is not a lawyer, got the law wrong. He accepts that reliance is central to the decision in Hedley-Byrne (see in particular at 502-3 per Lord Morris of Borthy Guest and at 529-300 per Lord Devlin and in Caparo per Lord Bridge at 620H-621A and per Lord Oliver at 638C-E ). But, he says, there was here no assumption of responsibility nor any opportunity to exclude it such as characterises the normal relationship with a professional advisor. Mr Evans had no choice but to do his job in relation to the plaintiffs’ premises and the fact that he did so by informal suggestion rather than formal prosecution or the service of an Improvement Notice does not mean that he voluntarily assumed responsibility for the accuracy of what he said. The evidence was that the plaintiffs were not seeking advice from Mr Evans but were being told what to do. The judge therefore misstated the position in describing Mr Evans as an advisor and he should not have disregarded Didman v Reading BC: Buxton J there held that a planning authority owed no duty of care when advising the plaintiff voluntarily that an application for planning permission was necessary when it was not (though it is to be noted that the judge expressly found that the defendant’s officers did not anticipate reliance and the plaintiffs did not in fact rely, so there was no relationship of reliance). Mr Denyer submits that the judge was wrong to conclude that the plaintiffs, faced with Mr Evans’ requirements, were in a stronger position than if provided by him with advice which they could accept or reject. This is not, he says, a case calling for an incremental development to the categories of liability in the way Caparo indicated. He relies on certain passages in the speech of Lord Browne-Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633 in particular 734H-735C, 736A-C and H, 739A-D, 750B and, particularly, 751F-G where Lord Browne-Wilkinson urges great caution before holding liable in negligence “those who have been charged by Parliament with the task of protecting society from the wrongdoings of others”: Mr Denyer submits that Environmental Health Officers should properly be added to the regulatory agencies there identified by Lord Browne-Wilkinson. It is to be noted, however, that this last passage is directed towards the inadvisability of imposing on a regulator a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. In the present case the plaintiffs are not an innocent third party affected as a consequence of the regulator’s failure to act: they are innocent parties to whom the regulator’s conduct was specifically directed.
For the defendants, Mr Mott QC, who did not appear below, submits that the circumstances here give rise to a duty of care within Hedley-Byrne v Heller and that no new incremental head of liability for carelessly performed statutory duty arises. The case turns on its exceptional and extreme facts which keep the case well within the boundary of Hedley-Byrne. The defendants’ duty was to take reasonable care in stating what works were necessary to comply with the law and could be enforced by law. The scale and detail of Mr Evans’ requirements and the degree of control which he exercised take the case out of the normal case of advice being given by a local authority officer. Although as Lord Browne-Wilkinson said in X v Bedfordshire CC at 732D:
“The careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action or a common law duty of care”,
carelessness in performing a statutory function and negligence in breach of a common law duty of care are not mutually exclusive. Although it might be reasonable to deal with minor breaches, for example the lifting of a formica surface, informally, it must be unreasonable to require £25,000 worth of alteration informally, because the plaintiffs were thereby deprived of the legal remedies provided by the Acts and the opportunity for judicial review. The offering of advice as indicated by the defendants’ letter of 15th July 1991 was an additional service which, although this was not made clear to the plaintiffs by Mr Evans, was not part of their statutory duty. Accordingly, there is no reason to accord protection from liability to an officer not acting under the statute. Damage was reasonably foreseeable because economic loss from carrying out the required works was inevitable. There was direct and sustained contact between Mr Evans and the plaintiffs over a number of months giving rise to a special relationship and there was, as the judge found, reliance by the plaintiffs as the defendants knew. Nothing in the authorities suggests that the principles enunciated in Hedley-Byrne are inapplicable merely because a relationship arises as a consequence of a statutory function. The authorities show, he says, that going beyond what is statutorily required can give rise to assumption of responsibility (see Welsh v Chief Constable of Merseyside and T v Surrey CC [1994] 4 All ER 577). In Harris v Wyre Forest DC [1990] 1 AC 831 at 847G, Lord Templeman said that the local authority’s surveyor’s statutory duty to value did not prevent the council coming under a tortious duty.
He submits that the analysis of Hedley-Byrne in Henderson v Merrett [1995] 2 AC 145 per Lord Goff at 180C to G and in Spring v Guardian Assurance [1995] 2 AC per Lord Goff 317B to 319D shows how wide is the scope of Hedley-Byrne. Furthermore, in Spring at 318G Lord Goff said:
“It is I consider clear from the facts of Hedley-Byrne itself that the expression ´special skill’ is to be understood in a broad sense, certainly broad enough to embrace special knowledge. Furthermore Lord Morris himself when speaking of the provision of a statement in the form of information or advice referred to the defendants’ judgment or skill or ability to make careful enquiry, from which it appears that the principle may apply in a case in which the defendant has access to information and fails to exercise due care (and skill, to the extent that this is relevant) in drawing on that source of information for the purposes of communicating it to another.”
The trial judge started his analysis of the law with reference to Hedley-Byrne, and quoted from the speeches of Lord Bridge and Lord Oliver in Caparo. He found proved each of the four matters identified by Lord Oliver at page 638 in reference to Hedley-Byrne, namely that the advice was given for a particular purpose, communicated directly to the plaintiff by Mr Evans, who knew it would be acted upon to the plaintiffs’ detriment. The judge concluded that this was probably sufficient to enable the plaintiff to succeed. He referred to the requirements which, unlike advice, could not be accepted or rejected and compulsion exercised upon the plaintiff as making her case much stronger than the Hedley-Byrne line of authorities. It is, submits Mr Mott, inconceivable that this experienced judge was finding that any new category of duty of care existed: not only did he not say so but no argument was addressed to him on this.
Mr Mott further submits that, in so far as it is pertinent to consider whether it is fair, just and reasonable for a duty of care to be imposed, the police cases are not determinative because they merely exemplify a general principle. There is no blanket immunity for the police as Swinney shows. They can be sued for wrongful arrest however deleterious this may be thought to be to the carrying out of their duties. The additional advisory service here went beyond the defendants’ statutory powers and duties and there is no public policy requiring a departure from the normal common law rules: it is comparable to the psychological advice in X v Bedfordshire to which Lord Browne-Wilkinson referred in 763A. Had the defendants, through Mr Evans, clearly distinguished between statutory enforcement and additional advice a common law duty in relation to the latter could have been excluded by suitable disclaimer and/or a recommendation to seek independent advice.
In my judgement, the authorities in relation to the police and the CPS are not determinative of the present case because there is no true analogy. The police are concerned with preventing or minimising the effect of wrongdoing by others and the true analogy with those cases would be, as Mr Mott suggests, if a hotel visitor who suffered food poisoning were to sue the local authority for dilatoriness in obtaining a closure order. Similarly, prima facie wrongdoing by a person prosecuted seems to me to be an unattractive foundation for imposing on the CPS, as a matter of policy, a general duty of care towards him. Furthermore, the policy considerations identified in Hill and Elguzouli do not, to my mind, arise unless what is contemplated is an incremental extension in accordance with Caparo. But, in any event, in relation both to the police and the CPS there is, as this court recognised in Elguzouli and Swinney, an exception to the principle that no duty is owed where, in relation to the particular plaintiff, responsibility has been assumed. This approach in my view is entirely in accordance with Hedley-Byrne itself, particularly as subsequently analysed by Lord Goff in Henderson v Merrett and Spring v Guardian Assurance to which I now turn.
In Henderson v Merrett, Lord Goff, in a speech with which all other members of their Lordships’ House agreed, discussed the breadth of the Hedley-Byrne principle and said this at 180C:
“We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other. On this point, Lord Devlin spoke in particularly clear terms in both passages from his speech which I have quoted above. Further, Lord Morris spoke of that party being possessed of a ´special skill’ which he undertakes to ´apply for the assistance of another who relies upon such skill.’ But the facts of Hedley-Byrne itself, which was concerned with the liability of a banker to the recipient for negligence in the provision of a reference gratuitously supplied, show that the concept of a ´special skill’ must be understood broadly, certainly broadly enough to include special knowledge. Again, though Hedley-Byrne was concerned with the provision of information and advice, the example given by Lord devlin of the relationship between solicitor and client, and his and Lord Morris’s statements of principle, show that the principle extends beyond the provision of information and advice to include the performance of other services. It follows, of course, that although, in the case of the provision of information and advice, reliance upon it by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect), nevertheless there may be other circumstances in which there will be the necessary reliance to give rise to the application of the principle. in particular, as cases concerned with solicitor and client demonstrate, where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, he may be held to have relied on the defendant to exercise due skill and care in such conduct.”
Lord Goff went on to re-assert the helpfulness of the concept of “assumption of responsibility”.
In Spring v Guardian Assurance Lord Goff at 318 repeated this analysis and at 318G went on to consider “special skills” in the terms which I have already recited in rehearsing Mr Mott’s arguments.
In the light of this analysis, leaving aside for the moment the existence of the defendant’s statutory powers and duties, which provided the backcloth and reason for the relationship between Mr Evans and the plaintiffs, it seems to me that the judge’s conclusion that the relationship gave rise to a duty of care within the ambit of the Hedley-Byrne principle is unassailable. His unchallenged findings of fact included reliance by the plaintiffs on Mr Evans and knowledge of such reliance on Mr Evans’ part. Accordingly, there was, within Hedley-Byrne as subsequently analysed, an assumption of responsibility by Mr Evans and hence a duty of care owed by him. Some of the authorities, of which Caparo is the obvious example, are expressed in terms of what is fair, just and reasonable and some, notably the police cases but also X v Bedfordshire CC in terms of policy considerations. But I confess that I am unable to discern in the authorities any material difference attributable to that difference in language, either in the route charted or in the ultimate destination, when the existence of a duty of care is recognised or denied. That said, where there is no statutory duty and a case of economic loss falls within the Hedley-Byrne principle, no further enquiry is necessary as to whether it is fair and reasonable to impose liability (see per Lord Goff in Henderson v Merrett at 181D). The defendants’ assumption of responsibility for certain services founds liability for the negligent performance of those services (per Lord Goff at 181C).
There was, however, no statutory duty involved in Hedley-Byrne, Henderson v Merrett or Spring v Guardian Assurance. Accordingly, the last question which arises in the present case is whether the existence of a statutory duty provides any ground for excluding from the ambit of a Hedley-Byrne duty a relationship derived from the exercise of statutory powers and duties. When considering the impact of statutory duty on the relationship in the present case, it seems to me that there are at least 3 categories of conduct to which the existence of the defendants’ statutory enforcement duties might have given rise. First, there might be conduct specifically directed to statutory enforcement, such as the institution of proceedings before the magistrates, the service of an improvement notice and the obtaining of a closure order, in an emergency or otherwise. Such conduct, even if careless, would only give rise to common law liability if the circumstances were such as to raise a duty of care at common law (see per Lord Browne-Wilkinson in X at 735A) and such a duty is not raised if it is inconsistent with or has a tendency to discourage due performance of the statutory duty (see per Lord Browne-Wilkinson in X at 739D). Secondly, there is the offering of an advisory service: in so far as this is merely part and parcel of the defendants’ system for discharging its statutory duties, liability will be excluded so as not to impede the due performance of those duties (see Lord Browne-Wilkinson in X at 763D). But, in so far as it goes beyond this, the advisory service is capable of giving rise to a duty of care; and the fact that the service is offered by reason of the statutory duty is immaterial (see per Lord Browne-Wilkinson in X at 763A). Thirdly, there is the conduct which is at the heart of this case, namely the imposition by Mr Evans, out with the legislation, of detailed requirements enforced by threat of closure and close supervision.
It is, for present purposes, unnecessary further to analyse the nature of the advisory service offered in the present case. For, in my judgment, the existence of their statutory powers and duties affords no reason why the defendants should not be liable at common law for this third type of conduct by their servant, which is otherwise well within the Hedley-Byrne principle. If, which I doubt, it is material, at this stage, to consider policy and what is fair, just and reasonable, these considerations could not, in my judgment, lead to any conclusion other than that conduct in the third category gives rise to a duty at common law.
The judge was right. I would dismiss this appeal save to substitute the sum of £34,000 as damages.
LORD JUSTICE WARD: I agree with my Lords that this appeal should be dismissed and I can state my conclusions shortly.
The background against this claim is made is, as the learned judge pointed out, that:
“The advent of the new (Food Hygiene Amendment Regulations 1990) was a cause of widespread anxiety and apprehension within the catering trade. They had given rise to a great deal of comment and speculation not only in the trade press but also in the national press and in the media generally. Nobody seemed very certain how the new regulations would be interpreted, nor how they would be implemented.”
The plaintiff’s case, as it is pleaded, is that Mr Evans, acting as the Environmental Health Officer, inspected the kitchen at the hotel for the purpose of assessing the extent to which it complied with those regulations and in the course of conversation with the plaintiff told her that her kitchen failed to comply with the requirements of the law and that alterations were necessary to remedy the situation.
“In the premises the relationship between Mr Evans, as a servant or agent of the defendant, and the plaintiff constituted a special relationship; and Mr Evans owed the plaintiff a duty to take reasonable care in the statements he made to her about the extent of the alterations required at the hotel to comply with the law.”
Her case was accordingly pleaded and presented as a Hedley-Byrne case (Hedley-Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.) The learned judge accepted her evidence and rejected the defendant’s. He decided that the Hedley-Byrne principles had received “more refinement and distillation by their Lordships House in the more recent case of Caparo Industries Plc v Dickman [1990] AC 605.” In his judgment, the “particularly helpful analyses” (of Lord Bridge at p. 620 and Lord Oliver at p. 638) “are probably sufficient to enable the plaintiff to succeed in the present action.” He did not consider that Tidman v Reading Borough Council [1994] 3 PLR 72 took the position any further. He found, however, “an important distinction between the present case…and the (Hedley-Byrne) line of authority.” He said:
“I have rejected Mr Evans’ evidence that he was giving advice and have found, as a fact, that he was making requirements. Those requirements, unlike advice, could not be accepted or rejected at the will of the plaintiff. Compulsion was being exercised upon her in the form of a sanction, namely that she would not be allowed to reopen for business the following spring if she did not comply. In my judgment those circumstances of the Hedley-Byrne line of authorities and make the plaintiff’s case that much stronger.”
The essence of the challenge mounted by Mr Denyer QC, taking his points in a slightly different order, is that imposing requirements is different from giving advice and involves no assumption of responsibility. Moreover, acting under compulsion negates the essential concept of reliance which is dependent upon freedom of choice to accept or reject the advice. Here the plaintiff was not given that option. Then Mr Denyer submits that because the defendant was under the statutory duty to regulate “a catering business” and “food premises”, this was a disguised claim for breach of statutory duty and for policy reasons and for ordinary notions of fairness, justice and reasonableness no duty should arise. I reject those submissions.
The speech of Lord Morris of Borth-y-Gest in Hedley-Byrne, at pp. 502/503, is directly applicable to the facts of this case. Mr Evans was “in a sphere in which a person is so placed that others could reasonably rely on his judgment or his skill or upon his ability to make careful enquiry” and Evans was a person who “takes it upon himself to give information or advice to…(Mrs Welton) who, as he knows or should know, will place reliance upon it.” I added the emphasis. Notwithstanding Mrs Welton’s evidence that “his suggestions were made for the purpose of carrying out his duties under the regulations — he was there in his public role, not as my advisor”, Mr Evans was undoubtedly holding himself out as possessing “special skill” which qualified him to inform her what had to be done to her premises to enable them to be opened in the spring.
“The expression ´special skill’ is to be understood in a broad sense, certainly broad enough to embrace special knowledge,”
per Lord Goff of Chieveley in Spring v Guardian Assurance Plc [1995] 2 AC 296 at 318G-H. In the terms of Lord Goff’s analysis in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at p. 180 there was “a relationship between the parties” which was “specific to the particular transaction.” Mrs Welton was, in the language of Henderson, entrusting Mr Evans with the conduct of her affairs and relying upon him to exercise skill and care in such conduct. The similarity between that case and this is too close to avoid anything other than the same conclusion being drawn as Lord Goff did at p. 182E. The managing agents/Mr Evans obviously held themselves out as possessing a special expertise to advise the Names/Mrs Welton on the suitability of the risks to be underwritten/her kitchen, and on the circumstances in which and the extent to which reinsurance should be taken out/remedial work should be done. The Names/Mrs Welton, as the managing agents/Mr Evans well knew, placed implicit reliance on that expertise. I can see no escape from the conclusion that, in these circumstances, and looking at the case in Hedley-Byrne terms, a duty of care is owed in tort by Mr Evans to Mrs Welton just as it was by the managing agents to such Names.
Although the learned judge does say that the circumstances take this case out of the category of Hedley-Byrne, I understand him to mean no more than that this case is different from Hedley-Byrne in that “requirements” were being imposed upon the plaintiff rather than “advice” given to her and that she had no
real choice in the matter other than to submit to the force of his apparent authority. That does make her position stronger than that of Heller & Partners Ltd. It does not alter the essence of the duty which, like my Lords, I find to be well within the parameters of Hedley-Byrne. Accordingly I accept, per Lord Goff in Henderson at p. 181D, that
“It follows that, once the case is identified as falling within the Hedley-Byrne principle, there should be no need to embark upon any further enquiry whether it is ´fair, just and reasonable’ to impose liability for economic loss.”
Nevertheless and although the pleaded case is of a common law duty of a Hedley-Byrne kind, yet the fact remains that Mr Evans was purporting to carry out his or the local authority’s statutory function. The background to the case being, as I have already set out, the extent to which the new regulations required alterations to be carried out, it seems to me inevitable that, per Lord Browne-Wilkinson in X (Minors) v Bedfordshire Council [1995] 2 AC 513 at 739C:
“The question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.”
I, therefore, agree with Mr Denyer, that questions of policy and fairness, justice and reasonableness do arise in this connection but not (per Hendserson at p181D above) with regard to justifying a claim for economic loss. To cite further from Lord Browne-Wilkinson’s speech at p. 739A-E:
“If the plaintiff’s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of the school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605, 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendants sufficiently proximate? Is it just and reasonable to impose a duty of care? See Rowling v Takaro Properties Ltd [1988] AC 473; Hill v Chief Constable of West Yorkshire [1989] AC 53…A common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.”
The statutory duty in this case is imposed on the local authority as an “Enforcement Authority” to “enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority:” Section 74(2) of the 1984 Act and Section 6(2) of the 1990 Act. The regulations further define the duty. There is power to institute proceedings under any provisions of the Act or regulations and authorised officers such as Mr Evans are given the right at all reasonable hours to enter any premises for the purpose of ascertaining whether or not there is or has been any contravention of the provisions of the Act or the regulations. There is, ultimately, a power to obtain a Closure Order against the premises. It is, therefore, draconian in its effect. Its purpose, broadly, is to ensure that food for human consumption is not injurious to the health of any person consuming it. In what is — or what I am at least prepared to assume is — a proper exercise of the discretion given to a local authority to fulfil their duty and to perform their required function, this Appellant Local Authority does not necessarily or always rush headlong to the Magistrates’ Court every time they find some greater or lesser breach. They operate more sensitively, and in my judgment, sensibly. As their letter dated 15th July 1991 made clear:
“It is this Department’s practice to always confirm any legal requirements in writing, and I can therefore only apologise for Mr Evans’ failure to do so in this case, particularly in view of your repeated verbal requests for written confirmation.
“You will appreciate that, in addition to pointing out works which are necessary to ensure full compliance in the short term with statutory requirements, Environmental Health Officers also, during their inspection, often issue advice and make recommendations regarding additional works which, if carried out, will ensure that legal requirements continue to be met in the long term and which may also facilitate improved food handling practices. In this regard, this Department’s policy is to differentiate in writing between requirements and recommendations so that proprietors of food premises clearly understand the implications. This omission on Mr Evans’ is very regrettable, and he has been made aware that any further errors of this sort will not be tolerated.”
I cite this letter extensively because it is in my judgment necessary to see precisely what Mr Evans was doing, or rather what he was not doing. He was entering the premises pursuant to his power under the Act but he was not exercising the power to launch a prosecution which was the only vehicle for obtaining a Closure Order. Nor was he carrying out the local authority’s policy of differentiating in writing between requirements (i.e. that which has to be done to cure a breach of the Act or regulations) and recommendations (i.e. that which could not be legally enforced). He was acting both outside the powers of the Act and also outside the informal enforcement practice of the District Council. In the scale and detail of the directions he gave, and the degree of control he exerted, he was conducting himself in a manner which was exceptional. These circumstances make this case special to its own facts and I would not wish my conclusions to be thought certain to govern, for example, a negligent assessment of defects in premises which are then made the grounds of a prosecution, or even those which are then asserted in a letter of the kind the local authority do send. A duty of care may still arise, on the other hand it may not. I am, however, quite satisfied that on the facts before us, the local authority was under a duty to take reasonable care.
I reach that conclusion addressing the questions posed by Lord Browne-Wilkinson in the Bedfordshire CC case in the passage I have cited. It is, in my judgment, reasonably foreseeable that the carelessness of Mr Evans in stipulating the work to be done and the consequences of not doing it was likely to result in economic loss. Given the special relationship between Mrs Welton and Mr Evans, and the assumption of responsibility by him and her reliance on him, there is sufficient proximity. The policy implications have to be considered. The purpose of the Act is for our collective welfare. There is, therefore, a public interest in not imposing a common law duty of care if it would render the correct operation of the statutory duty disproportionately onerous by, for example, deterring inspections and recommendations for fear of having to defend and meet claims for negligence which further deplete precious human and financial resources. In such cases the interests of the individual (Mrs Welton) may have to be sacrificed for the greater common good. The local authority have not made out such a case. Distinctions have to be drawn between cases where, per Lord Browne-Wilkinson in Bedfordshire CC:
“as with the child abuse cases, the courts should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes” (p. 762F),”
and cases where:
“once the decision is taken to offer such a (psychological advisory) service, a statutory body is in general in the same position as any individual or organisation holding itself out as offering such a service:” (p. 763A).”
The facts before us come within the latter category. Furthermore, the position of Mr Evans is more akin to the position of the psychologists in the education cases, recognised as quite different from that of the doctor and social worker in the child abuse cases. Accordingly, per Lord Browne-Wilkinson at p. 764A:
“There is no potential conflict of duty between the professional’s duties to the plaintiff and his duty to the educational authorities. Nor is there any obvious conflict between the professional being under a duty of care to the plaintiff and the discharge by the authority of its statutory duty.”
In conclusion, I find that the approach of Lord Steyn in Marc Rich & Co ACG v Bishop Rock Marine Company Ltd [1996] 1 AC 211 to be helpful. Looking at the matter from the point of view of the plaintiff, she has no other remedy than this action. She has undoubtedly suffered damage which would be recoverable on Hedley-Byrne principles and an important element of public policy is that such damage should be compensated. From the point of view of the local authority, the court is not intruding upon the manner in which the local authority exercises its discretionary powers. The burden of performing the advisory service carefully, which is the burden cast upon those in the private sector, is not so onerous or demanding upon a fair allocation of finite resources as to make it unreasonable to expect care to be taken. Finally, from the point of view of the public at large,public safety is important but in the special circumstances of this case it does not seem to me that it would be imperilled if the need for justice to Mrs Welton was give its proper place. So I conclude that fairness, reasonableness and justice and all the material aspects of policy inextricably wrapped in those concepts lead me to uphold the duty of care imposed upon the local authority in this particular case. Accordingly, I, too, would dismiss the appeal.
LORD JUSTICE JUDGE: The relevant facts are set in the judgment of Lord Justice Rose which I have read in draft and with which I agree.
In summary, recommendations were made directly to Mrs Welton by Mr Evans. She was not seeking advice or information from him but the recommendations were nevertheless made to her. They were accompanied by the threat of sanctions, the effect of which would be damaging to her business and livelihood. When making them Mr Evans expressly asserted, correctly, that he was acting as the environmental health officer of the North Cornwall District Council, a person vested with the authority to make such recommendations and indeed to issue verbal warnings about the possible consequences of non-compliance. It was only natural Mrs Welton should act on his recommendations. They were made negligently, and having acted on them Mrs Welton incurred substantial and unnecessary expense.
Mrs Welton’s claim for damages is founded on Hedley-Byrne v Heller [1964] AC 465. The principles involved in this decision have been reformulated on frequent occasions in the House of Lords, and I do not propose to attempt further reformulations of my own nor repetitiously to cite extensive passages from numerous speeches in which the principles have been set out. For the reason given by Lord Justice Rose in this case the claim based on the application of the principles in Hedley-Byrne appears incontrovertible.
Nevertheless, as the damage was consequent not on any abuse of power or improper motivation but on the failure of Mr Evans to exercise reasonable care while exercising that statutory powers granted under the Food Act 1984, the Food Safety Act 1990 and the regulations thereunder, it is argued on behalf of the local authority by Mr Denyer QC that Mrs Welton is not entitled to recover damages. The essential features of the argument are that Mr Evans did not make his recommendations in response to any request for advice from Mrs Welton. Indeed, he was “telling” her rather than advising her. He was not being paid by her in the way that a professional advisor might expect payment. He was simply seeking to enforce compliance with the statutory provisions relating to the preparation and storage of food in the interests of visitors to Mrs Welton’s establishment and his recommendations all fell within the ambit of the relevant provisions. In other words, Mr Evans was simply doing his job as an environmental health officer. Accordingly, Mrs Welton’s claim for damages against the local authority should fail.
In deference to these arguments I shall refer to the salient features which arise for consideration. The duties under Hedley-Byrne arise from the spoken as well as the written word. Although “advice” is used as a convenient label, and in particular to underline that the principle is not concerned with the “ordinary courtesies and exchanges” of life (per Lord Morris) and that “importance and influence” (per Lord Pearce) would be attached to the words spoken, the principle is not confined to cases in which formal advice is given. This common theme of the speeches is encapsulated by the observation of Lord Morris that:
“The fact that the service is to be given by means of the instrumentality of words can make no difference.”
In the more recent decision in Caparo Plc v Dickman [1990] 2 AC 605 the same principle was expressed by Lord Oliver.
“The damage… lies always in the reliance by somebody upon the accuracy of that which the word communicates….damage or loss may arise from the reliance upon the spoken or written word.”
He went on to analyse the relevant principles using the word “advice” to include “the maker of a statement or the giver of advice”.
It is, in my judgment, irrelevant to the question for decision that the language used by Mr Evans could properly be described as a recommendation, exhortation or instruction rather than “advice”. The duty may arise whatever the description applied to the words used. Indeed, to the extent that the words are clothed with the voice of authority and the hint of compulsion, the more important that they should be included within the normal ambit of the duty to take reasonable care.
The duty may also arise when advice — using the word as a convenient label — is given gratuitously and without the advisor receiving any conceivable benefit. In Hedley-Byrne itself, which involved a gratuitous supply of a reference to a bank, there is reference to a “service voluntarily undertaken” (per Lord Reid). Lord Morris referred to “many situations in which one person voluntarily or gratuitously undertakes to do something for another person and becomes under a duty to exercise reasonable care”. Analysing the respondent’s case, Lord Devlin said:
“Their sheet anchor is that they were performing it gratuitously and therefore no liability for its performance can arise. My Lords, in my opinion this is not the law”.
The same principle was recently repeated by Lord Browne-Wilkinson in White v Jones [1995] 2 AC 145 where, identifying a specific category of relationship where the principle applied, he spoke of:
“The special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff’s affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon”.
The subsequent rejection by Lord Griffiths in Smith v Bush [1990] 1 AC 831 that a “voluntary assumption of responsibility” was a necessary ingredient or test of liability was directed to “the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice”, and did not undermine the principle that liability could arise notwithstanding the absence of any perceptible advantage to the person giving advice. For the purposes of this judgment it is unnecessary to examine further the apparent differences in the approach to “the assumption of responsibility” which may be gleaned from the decisions in Smith v Bush, Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, White v Jones [1995] 2 AC 207 and Spring v Guard Insurance Plc [1995] 2 AC 296 because on any view for Hedley-Byrne purposes Mr Evans assumed responsibility to Mrs Welton. Mr Denyer drew our attention to the decision in Marc Rich & Co v Bishop Rock Marine Co Limited [1996] 1 AC 211 to support the argument that there are circumstances in which it would be wrong to impose any obligation on organisations like classification societies who act for the “collective welfare”. Without suggesting that a classification society has any close similarity to a local authority carrying out its statutory functions, it is clear that in Marc Rich this consideration was one only among many others which were taken into account before it was held that it would not be fair, just or reasonable to impose liability. If on its own the fact that the service was rendered gratuitously would have been sufficient to exclude liability the House of Lords would have said so expressly, and no doubt after explaining the reasons behind what would have amounted to a departure from the clear statements of principle in Hedley-Byrne itself. Accordingly, the fact that Mr Evans made his recommendations gratuitously would not preclude liability under Hedley-Byrne.
In view of the unequivocal authorities that Hedley-Byrne liability may arise in respect of oral recommendations made gratuitously, the single remaining question is whether the local authority responsible for the environmental health officer acting in the course of his duties may nevertheless escape liability for his Hedley-Byrne negligence. Mr Denyer reminded us that there are numerous cases where it has been decided that an organisation vested with a public responsibility should not be held liable to a member of the public for actions (or omissions) arising from the performance, or failure to perform, the duties imposed on them by statute or regulation (see for example the most recent analysis by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633). This was the most significant feature of the argument advanced on behalf of the local authority. It was argued that as Mr Evans was entitled to make recommendations gratuitously for the purpose of the “collective welfare” of the community, it would not be right as a matter of policy nor fair, just or reasonable for liability to attach to the local authority even when his recommendations were made negligently. Non-activity or inadequate activity by police officers which on one view failed to prevent wrongdoing by a criminal represents a very good example of actions for damages by the victims or relatives of crime which have failed on policy grounds. (Hill v Chief Constable of West Yorkshire [1989] AC 53, Alexandrou v Oxford [1993] 4 AER 328, Osmond v Furguson [1993] 4 AER 344 and Ancell v McDermott [1993] 4 AER 355: see also in relation to the Crown Prosecution Service, Elguzouli-Daf v Commissioner of Metropolitan Police [1995] QB 335.) It was submitted that an environmental health officer has similar investigative and regulatory functions as police officers. I doubt whether it is possible to equate the two areas of responsibility, but in any event this argument is without foundation, not because policy considerations may never arise so as to prevent liability, but because this is not a case in which the claim is made by a person who could be compared with the victim of a crime which more positive police activity could have prevented. As Mr Mott QC pointed out, the true comparison with the victim of crime would be a visitor to Mrs Welton’s premises who suffered, for example, from food poisoning and then sought to sue the local authority for failure to comply with statutory obligations.
The circumstances in which local authorities may be held liable in private law claims for damages have been repeatedly considered in the House of Lords. Nothing in the decisions suggests that the Hedley-Byrne principle has been undermined merely because advice has been given by employees of local authorities carrying out their statutory duties. In Murphy v Brentwood District Council [1991] 1 AC 398 the House of Lords considered whether a local authority exercising its supervisory duties under the Public Health Act 1936 and the relevant building bye-law regulations thereunder could be liable in a private law claim for damages for economic loss suffered by a house purchaser. Having analysed Anns v Merton London Borough Council [1978] AC 728 which Lord Keith described as “a new series of liability governed by a principle indeterminate in character but having the potentiality of covering a wide range of situations” the House of Lords decided that it should no longer be followed, and thus reduced the ambit of potential liability for the local authorities.
However, the decision in Murphy did not purport to provide local authorities with immunity from a private law claim for damages however such liability might arise. For example, the question whether an action for direct injury to health consequent on failure to ensure compliance with the bye-laws was expressly left open. Perhaps more significant in the present context Lord Bridge agreed with the decision in Council of the Shire of Sutherland v Heyman 157 CLR 424 that:
“A duty of care of a scope sufficient to make the authority liable for damage of the kind suffered can only be based on the principle of reliance”.
Both Lord Keith and Lord Oliver appeared to accept that if the facts warranted liability under the Hedley-Byrne principle could be established against a local authority.
This approach is further supported by the decision of the House of Lords in Harris v Wyre Forrest District Council [1990] 1 AC 831 where notwithstanding that the council’s employee was fulfilling a statutory duty, liability was established and the local authority was held liable to the plaintiff’s on Hedley-Byrne principles. If Mr Denyer’s submission were correct, it is difficult to see how the local authority failed to escape liability. The basis of liability was summarised by Lord Templeman who said:
“The statutory duty of the council to value the house did not in my opinion prevent the council coming under a contractual or tortious duty to Mr and Mrs Harris who were cognisant of the valuation and relied on the valuation”.
In my judgment, the present case does not involve any creation or extension of principle. Hence it is not necessary to reflect on the conclusions which would have followed if the facts had been other than they were or to analyse the cases which, notwithstanding the “policy” arguments, have in the light of their own particular circumstances been permitted to proceed. (See Welsh v Chief Constable of Merseyside Police [1993] 1 AER 692 approved in Elguzouli-Daf and Swinney v Chief Constable of Northumbria, unreported, Court of Appeal transcript 22nd March 1996).
Despite the matters raised by Mr Denyer once the evidence of Mrs Welton was accepted and that of Mr Evans rejected the conclusion that the local authority was liable to Mrs Welton was inevitable on the basis of the application of well established principles. If it had been necessary to deal with public policy considerations on the facts of what actually happened in this case, policy demands that Mrs Welton should have a remedy to compensate her for damages caused by the instructions of an official vested with authority who not only directed her negligently as to what was required to achieve compliance with the statutory provisions, but also gave her inaccurate information about the true extent of his authority and omitted any reference to her own rights under the statutory provisions. It would be neither just nor fair nor reasonable to hold that a duty of care did not exist or that liability could not be established.
I too would dismiss this appeal.
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ORDER: Appeal dismissed; judgment for the plaintiffs in the sum of £34,000; the successful respondent to have the costs of the appeal; legal aid taxation; the sum paid into court, and the interest on it, to go to the appellants; leave to appeal refused.

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