• In the case of East Suffolk Rivers Catchment Board v Kent [1941] AC 74, an authority that had a discretion to choose whether to carry out repairs to a wall was held to not be liable and not owe a duty of care to the respondent under negligence as it would have only been responsible for any additional damage to the wall incurred during the repairs.

Facts of the Case

  • The respondent’s (Kent; R’s) land was flooded as a sea wall meant to protect it could not withstand the high incoming tide due to a hole in the wall
  • The appellant (A) was statutorily required to carry out repairs under the Land Drainage Act 1930, so undertook this duty of theirs
  • However, the repairs to the wall were carried out ineffectively, so the flooding remained constant for nearly 180 days; this exacerbated the damage caused to R’s land and dairy farm
  • Had the repairs been conducted with the necessary reasonable skill, only 14 days would have been needed to repair the wall; on the contrary – the repair materials were inadequate, the workers tasked to carry the repairs were insufficient in number and three previous interventions with the hole in the wall had actually expanded the breach in the wall

Issues in East Suffolk Rivers Catchment Board v Kent [1941] AC 74

  • A appealed against the decision of the court in the previous instance that even though the Land Drainage Act 1930 conferred powers to A, a duty to carry out repairs with skill and expedition and without injuring anything or anybody was assumed only if A began doing the repairs

Held by the House of Lords  

  • Appeal allowed – the water levels had caused previous damage to the wall on 22 occasions, so the damage needed to have been worsened by A’s repairs for their discretionary assumption of the repairs to have amounted to a duty of care

Viscount Simon LC

Like the whole panel of five Lords, Viscount Simon LC allowed the appeal, pointing the insufficiency of evidence by the respondent as a main reason for quashing the Court of Appeal’s verdict

  • ‘[…] but the respondents cannot point to any injury inflicted upon them by the appellant Board, unless it be the Board’s want of success in endeavouring to stop the flooding at an earlier date.’ [at p.85]
  • ‘It is admitted that the respondents would have no claim if the appellants had never intervened at all. In my opinion, the respondents equally have no claim when the appellants do intervene, save in respect of such damage as flows from their intervention and as might have been avoided if their intervention had been more skilfully conducted.’ [at p.88]

Lord Atkin

Allowed the appeal and considered a distinction between a statutory duty to do/not do something and a common law duty for reasonable care so as to prevent injury; discussed policy decisions and their implications on the public

  • ‘I cannot imagine this House affording its support to a proposition so opposed to public interests where there are so many public bodies exercising statutory powers and employing public money upon them. I myself have been unable to think of any case where a duty to perform a continuous operation with reasonable care, i.e. without negligence, does not involve an obligation to perform it with reasonable dispatch. Of course what is reasonable means reasonable in all the circumstances of the particular case.’ [at p.91]

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