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Report No. 01

27. Statutory powers.-

In the case of statutory powers, Lord Greene, M.R., in Fisher v. Ruislip U.D.C. exhaustively reviewed the cases and enunciated at page 592 the following principles:

"The duty of undertakers in respect of the safety of works executed under statutory powers has been considered on many occasions. Statutes conferring such powers do not as a rule, in terms, impose a duty on the undertakers to exercise care in the construction or maintenance of the works. No such duty was imposed by the Civil Defence Act, 1939 in respect of shelters constructed under its powers. Nevertheless, it is clearly established that undertakers entrusted with statutory powers are not in general entitled, in exercising them, to disregard the safety of others.

The nature of the power must, of course, be examined; before it can be said that a duty to take care exists, and if so, how far the duty extends in any given circumstances. If the legislature authorises the construction of works which are in their nature likely to be a source of danger and which no precaution can render safe, it cannot be said that the undertakers must either refrain from constructing the works or be struck with liability for accidents which may happen to third persons. So to hold would make nonsense of the statute.

If, on the other hand, the legislature authorises the construction and maintenance of a work which will be safe or dangerous to the public according as reasonable care is or is not taken in its construction or maintenance, as the case may be, the fact that no duty to take such care is expressly imposed by the statute cannot be relied on as showing that no such duty exists. It is not to be expected that the legislature will go out of its way to impose express obligations or restrictions in respect of matters which every reasonably minded citizen would take for granted."

Except, therefore, where the legislature authorised the construction of a work which by its very nature is likely to be a source of danger, the common law obligation of taking reasonable care is cast upon the authority exercising a power. Whether a statutory authority or statutory power is exercised, one cannot escape liability if one fails to take reasonable care to avoid injury and thus be guilty of negligence. These principles should govern equally whether the authority exercising the power is the government, a local authority, or a private person.

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