P’s car was hit when R1 came out of a junction and hit him. They settled. P also sued the local council because the junction was notoriously dangerous and they had the statutory power to correct it, which gave rise to a duty of care. (NB The council were aware of the problem, but had not changed it because it would have involved changes to the land of a person who had not responded to the council’s request to change his land for the purpose of making the junction safer). HL said council were not liable as the issue was not justiciable: (1) the decision was not irrational or ultra vires in some other way (2) it involved weighing up public interests. However the court abandons the operational-policy limb of the justiciability test.
Lord Hoffman (delivering speech for majority): Firstly the action (or rather omission) wasn’t justiciable.
Secondly omissions could not normally satisfy the ‘proximity’ requirement. This is because (1) omissions liability inhibits freedom to make moral choices, (2) it would be unfair to pick on one person rather than another in a “good Samaritan” scenario where lots fail be good Samaritans, and (3) economically an act should bear its own costs so that people make choices according to the cost to them: externalities distort our decision-making process i.e. we will be more careless if we can force others to pay for our mistakes.
Thirdly, even if there had been justiciability and proximity, a duty of care would not have been fair, just and reasonable (no precedent having established a duty of care for this scenario). It would be bad public policy to make the council liable for highway problems since it would provide an incentive to drastically overspend so as to avoid liability and harm the ability of elected representatives to make free choices.