Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum & Ors [1997] INSC 46 (17 January 1997)
K. RAMASWAMY, G.B. PATTANAIK K. Ramaswamy, J.
ACT:
HEAD NOTE:
Leave granted.
This appeal by special leave arising from the judgment of the Division Bench of the Gujarat High Court, dated March 20, 1991 in First Appeal No.259 of 1980, gives rise to an important question of law of liability for negligence in causing the death of one Jayantilal, the husband of the respondent No.1 and father of the respondents Nos. 2 to 4 due to sudden fall of a tree while he was passing on the road in Kothi compound of Collectorate on his way to attend to his duties as a Clerk in the office of the Director of Industries, Rajkot.
The admitted facts are that the deceased Jayantilal was residing in Padadhri. He used to daily come on a railway season ticket to Rajkot to attend to his office work. On March 25, 1975, while he was walking on footpath on way to his office, a road-side tree suddenly fell on him as a result of which he sustained injuries on his head and other parts of body and later died in the hospital. The respondents filed the suit for damages in a sum of Rs.1 lakh from the appellant-Corporation. The trial Court decreed the suit for a sum of Rs.45,000/- finding that the appellant had failed in its statutory duty to check the healthy condition of trees and to protect the deceased from the tree falling on him resulting in his death. On appeal, the Division Bench has held that the appellant has statutory duty to plant trees on the road-sides as also the corresponding duty to maintain trees in proper condition. While the tree was in still condition, it had suddenly fallen on the deceased Jayantilal who was passing on the footpath. The statutory duty gives rise to tortious liability on the State and as its agent, the appellant-Corporation being a statutory authority was guilty of negligence on its part in not taking care to protect the life of the deceased. The respondents cannot be called upon to prove that the tree had fallen due to appellant's negligence. Statutory obligation to maintain trees being absolute, and since the tree had fallen due to its decay, the appellant has failed to prove that the occurrence had taken place without negligence on its part.
The appellant failed to make periodical inspection whether the trees were in good and healthy condition subjecting them to seasonal and periodical treatment and examination.
Therefore, the appellant had not taken care to foresee the risk of the tree's falling and causing damage to the passers-by. Thus the appellant is liable to pay damages for the death of Jayantilal. The Division Bench accordingly confirmed the decree of the trial Court. Thus this appeal by special leave.
Shri T.U. Mehta, learned senior counsel for the Corporation, contended that the High Court is not right in its conclusion that the appellant is having unqualified and absolute duty to maintain the trees and was guilty to take reasonable care in maintaining the trees in healthy condition. The burden of proof is on the respondents to prove that there was breach of duty on its part that the occurrence had taken place for not taking reasonable care.
In the nature of the things, it is difficult for the Corporation to inspect every tree to find out whether it is in a healthy or decaying condition. The standard of care is not as high as in the case of breach f a statutory duty as the case where by positive act, the Corporation created a thing which is dangerous and failed to prevent such danger which caused damage to others. It is not enough for the respondents to establish that the appellant was remises in its periodical treatment to the plants but was careless in the breach of specific legal duty of care towards the deceased Jayantilal. The Corporation could not foresee that a tree would fall all of a sudden when Jayantilal was passing on the footpath. There is no reasonable proximity between the duty of care and the doctrine of neighbourhood laid by the House of Lords in Donoghue v/s. Stevenson [(1932) AC 562]. The Common Law liability on the part of a statutory Corporation is now authoritatively settled in Murphy v/s. Brentwood District Council (1991) 1 AC 398] over-ruling the two tier test laid down in Anns. v/s. Merton London Burough Council [(1978) AC 728]. A breach of statutory duty, therefore, does not ipso facto entail Corporation's liability for its failure or of its staff to comply with the statutory duty to protect Jayantilal or class of persons to which the deceased is a member. There is no liability for negligence unless a legal duty to take care exists towards the deceased Jayantilal or class of persons, i.e. pedestrians and that duty should be one which the Corporation owed to the plaintiff himself. This should be pleaded and proved which is lacking in the present case, Knowledge of harm likely to occur to the deceased is a pre- requisite of liability which must in some sense be foreseeable.
It was further contended that though Corporation has a statutory duty to plant trees, no action will lie against it for damages since the indemnity extends not merely to act itself but also to its necessary consequences. The High Court, it was argued, has also committed serious error in its conclusion that the statutory duty of the Corporation to maintain trees carries with it the duty to take care by regular examination of the health of the trees ad felling of decaying trees; it lost sight of the fact that it is only a discretionary duty. The legislature did not intend to confer any cause of action for breach of the statutory duty and none was provided for its breach. The conclusion of the High Court that because of the breach of absolute statutory duty the Corporation was negligent, is not correct proposition of law.
In determining the legislative intent, the Court is required to consider three factors, viz., the context and the object of the statute, the nature and precise scope of the relevant provisions and the damage suffered not of the kind to be guarded against. The object of the Act is to promote facilities of general benefit to the public as a whole in getting the trees planted on road-sides, the discharge of which is towards the public at large and not towards an individual, even though the individual may suffer some harm. The Act does not provide for any sanctions for omission to take action; i.e., planting trees or their periodical check up when planted. By process of interpretation, the Court would not readily infer creation of individual liability to a named person or cause of action to an individual, unless the Act expressly says so. While considering the question whether or not civil liability is imposed by a statute, the court is required to examine all the provisions to find out the precise purpose of the Act, scope and content of the duty and the consequential cause of action for omission thereof. Action for damages will not lie in the suit by an injured person if the damage suffered by him is not of the kind intended to be protected by the Act.
Before issuing notice, this Court directed the appellant to deposit Rs.5,000/- towards the cost of the respondents to defend the action in this Court, since an important question of law of general importance arises in the case. Accordingly, the said sum came to be deposited.
When notice was issued, the respondents sent a letter to the Registry stating that apart from the said sum of Rs.5,000/-, additional amount that was decreed by the lower Court, should also be directed to be deposited as a condition to defend the case and further costs. Under those circumstances, by order dated August 24, 1995 we observed that the stand taken be the respondents was unreasonable and not correct. Shri P.S. Narasimha, who was present on that day in this Court, was requested to assist the Court as amicus curiae and to receive the above sum of Rs.5,000/- towards his fee. We directed the counsel to submit their written arguments. Accordingly, the counsel have submitted their written arguments. Shri Narasimha, learned amicus curiae made thorough study on the subject and has given valuable assistance. We place on record our deep appreciation of the pains taken by him. According to the learned counsel, the liability in tort which arose in Common Law has been evolved by the courts in England but law has not been well developed in our jurisdiction. In Common Law, there existed duty of foreseeability, proximity, just and reasonable cause and policy. Attempts have been made to identify general theory of liability in tort consistent with causation, fairness, reciprocity and justice, balancing conflicting interests as well as economic efficiency. The tortious liability falls into one of the three categories, viz., (a) some intentional wrong doing (b) negligence ad (c) strict liability. In this case, we are concerned with negligence on the part of the appellant-Corporation in maintaining the trees on the road-sides. The principle evolved by the courts in England is that a reasonable foresight of harm to persons whom it is foreseeable or is likely to harm by one's carelessness is essential. For the plaintiff to succeed in an action for negligence the plaintiff requires to prove that (i) the defendant is under a duty to take care; (ii) the burden of proof owed by the plaintiff has been discharged by the proof of breach of duty and (iii) the breach of the duty of care is the cause for damage suffered by the plaintiff. Breach of duty raises factual question whether the required standard of conduct has been reached. It is only relevant if a duty of care has been held to exist in law. Damage similarly is also confined to the enquire of facts. Duty of care, on the other hand, is far more crucial concept as it fixes the boundaries of tort of negligence. The regulation of duty of care envisaged in Donoghue's principle, in its widest terms, has a reasonable foresight of harm to persons whom it is foreseeable or is likely to be harmed by one's carelessness and has in turn made it easy to hold in subsequent cases that there should be liability for negligently inflicting damage in new situations not covered by previous case law because damage was foreseeable. If want of duty of care is established, there comes to exist foreseeability of the damage and sufficient proximate relationship between the parties and it must be just and reasonable to impose such a duty. The legal duty to prove proximity is not physical proximity. Proximity is used to describe a relationship between the parties by virtue of which the defendant can reasonably foresee that his action or omission is likely to cause damage to the plaintiff of the relevant type. The relationship refers to no more than the relevant situations of the parties as a consequence of which such foreseeability of damage may exist. The English principles of common law are approved and adopted by the courts in India on the principles of justice, equity and good conscience. In support thereof, he relied upon Gujarat Stat Road Transport Corporation v/s. Ramabhai Prabhatbhai ((1987) 3 SC 234 at 238].
Appellant-Corporation owes a duty of care in common law. The trees and streets vest in the Corporation. It was its responsibility, therefore, to maintain the trees. The Corporation should have the foresight that trees, if neglected to be maintained properly, could cause injury to passers-by. The findings recorded by the courts below that the appellant has committed breach of duty of care is a finding of fact. From the breach of the duty of care, the entitlement to damages arises to the respondents due to the death of Jayantilal. The learned counsel also relied upon K. Ramadas Shenoy v/s. The Chief Officer, Town Municipal Council, Udipi & Ors. [AIR 1974 SC 2177] and contended that answer to the question whether an individual] who is one of the class for whose benefit an obligation has been imposed, whether or not enforced in action for omission to perform the duty, depends upon the language used in the statute. The injury may be caused either by fulfillment of the duty or omission to carry it out or by negligence in its performance. In the light of the above principles, he submitted that though the duty of the appellant to plant trees is discretionary nonetheless it has a statutory duty to plant the trees and to maintain them under Section 66 of the Bombay Provincial Municipal Corporation Act, 1949 (for short, the "Act") and the discretion must be construed to be mandatory duty. By the omission to perform the duty to maintain the trees in healthy condition or to cut off the trees in decaying condition, the Corporation entails with liability to make good the loss/damages caused to the respondents. The High Court, therefore, has not committed any error of law warranting interference.
The diverse contentions give rise to the questions:
whether the appellant-Corporation owes a duty of care to maintain the trees as a statutory duty and whether the cause of death of Jayantilal has proximate relationship with the negligence giving rise to tortious liability, entailing payment of compensation to the respondents? The marginal note of Section 66 of the Act indicates "Matters which may be provided for by the Corporation at its discretion". It envisages that the Corporation may in its discretion, provide from time to time, wholly or partly for all or any of the following matters, viz, (viii) "the planting and maintenance of trees of road-sides and elsewhere". Under Section 202 of the Act, all streets within the city vest in the Corporation and are under the control of the Corporation. The Act does not provide machinery for enforcement of obligations cast under Section 66, nor in the event of failure to discharge those obligations any remedy is provided. By operation of Section 202 read with Section 66, since the trees vest in the Corporation, the Corporation is statutorily obligated to plant and maintain trees on the road-sides and elsewhere as a public amenity to ensure eco- friendly environment. An attempt had been made in 1965 to codify the law of tort in a statutory form. The Bill in that behalf, reintroduced in the Parliament in 1967, died as still born. Therefore, there is no statutory law in India, unlike in England, regulating damages for tortious liability. In the absence of statutory law or established principles of law laid by this Court or High Courts consistent with Indian conditions and circumstances, this Court selectedly applied the common law principles evolved by the courts in England on grounds of justice, equity and good conscience (vide Ramanbhai Prabhatbhai's case). Common law principles of tort evolved by the courts in England may be applied in India to the extent of suitability and applicability to the Indian conditions. Let us consider and evolve our principles in tune with the march of law in their jurisprudence of liability on tort. It is necessary to recapitulate the development of the principles and law of tort developed by evolutionary process by applying them from case to case and in some cases the statement of law laid by House of Lords, as guiding principles of law on tortious liability. In the formative stage of the development of tortious liability, the Corporation being a Corporation aggregate of persons, could not be held liable where liability involved some specific state of mind as was held in Stevens vs. Midland Counties Railway [1854 (10) Ex.352].
However, it is now well settled that a Corporation can be held liable and accordingly it may be sued for wrongs involving fraud, malice, as well as for wrong in which intention is immaterial as was held in Barwick vs. English Joint Stock Bank [(1867) LR 2 Ex.259]; Cornford vs. Carlton Bank [(1900) 1 Queen's Bench 22]; and Glasgow Corporation vs. Loremer [(1911) AC 209].
In Sir Percy Winfield's in his "Province of the Law of Tort" page 32 referred in "Clerk and Lindsell on Torts" (Common Law Library Series No.3) (12th Edn.) Chapter I, page 1, page 1 it is stated that "tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages". Duty primarily is fixed by law which on violation, fastens liability to pay damages. It is personal to the injured. Tort and contract are distinguishable. In tort, liability is primarily fixed by law while in contract they are fixed by the parties themselves. In tort, the duty is towards the persons generally while in contract it is towards specific persons or persons. If the claim depends upon proof of proof of the contract, action does not lie in tort. If the claim arises, from the relationship between the parties, independent of the contract, an action would lie in tort at the election of the plaintiff, although the might alternatively have pleaded in contract. The law of tort prevents hurting one another.
All torts consist of violation of a right in the plaintiff.
Tort law, therefore, is primarily evolved to compensate the injured by compelling the wrong-doer to pay for the damage done. Since distributive losses are an inevitable by-product of modern living in allocating the risk, the law of tort makes less and less allowance to punishment, admonition and deterrence found in criminal law. The purpose of the law of tort is to adjust these losses and offer compensation for injuries by one person as a result of the conduct of another. The law could not attempt to compensate all losses.
Such an aim would not only be over-ambitious but might conflict with basic notions of social policy. Society has no interest in mere shifting of loss between individuals for its own sake. The loss, by hypothesis, may have already occurred, and whatever benefit might be derived from repairing, the fortunes of one person is exactly offset by the harm caused through taking that amount away from another. The economic assets of the community do not increase and expense is incurred in the process of realisation, as stated by Oliver Lindel Holmes in his "Common Law" at page 96 (1881 Edn.). The security and stability are generally accepted as worthwhile social objects, but thee is no inherent reason for preferring the security and stability of plaintiffs to those of defendants.
Hence, shifting of loss is justified only when there exists special reason for requiring the defendant to bear it rather than the plaintiff on whom it happens to have fallen. (vide "Common Law" of Holmes).
In "Blacks Law Dictionary" (6th Edn.) at page 1489, `tort' is defined as violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other involved in a given transaction. There must always be a violation of some duty owed to plaintiff and generally such a duty must arise by operation of law and not by mere agreement of the parties. "A legal wrong is committed upon the person or property, independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual". Negligence is failure to use such care as a reasonable prudent and careful person would use, under similar circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
Negligence and tort have been viewed without elaborately embarking upon the definition of "tort" applicable to varied circumstances and the scope of negligence in its wider perspective. Let us proceed to consider the meaning of "negligence" in the context of tort liability arising in this case. In every case giving rise to tortious liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. We are concerned in this case with tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in - (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Negligence would in such acts and omissions involve an unreasonable risk of harm to others. The breach of duty causes damage and how much is the damage should be comprehended by the defendant.
Remoteness is relevant and compensation on proof thereof requires consideration. The element of carelessness in the breach of the duty and those duties towards the plaintiff are important components in the tort of negligence.
Negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes.
Duty of care is, therefore, crucial to understand the nature and scope of the tort of negligence.
The question in each case is whether the defendant has been negligent. In determining duty of care, public policy involved in the statute requires detailed examination. Upon examination, they are required to further consider whether its extension elongates that public policy or retards its effectuation or frustrates its object and the inevitable effect thereof on the affected plaintiff as well as general public. No general or abstract principle is desirable to be laid. The careless breach of duty will vary from case to case and it should not be unduly extended or confined or limited to all situations. The attending circumstances require evaluation and application to particular set of facts of a given case. The standard of care also varies in a particular factual situation. Defendant must be under a duty of care not to create latent source of physical danger to the person or property of third party whom he ought to reasonably foresee as likely to be effected thereby. Thus the latent defect causing actual physical damage to the person or property gives the cause of action and them only the defendant is liable to pay the damages for tortious liability. It must, therefore, be an essential element to establish that there is a positive act or a duty and the defendant is under duty of care not to create/direct latent source of physical danger to the person or property of third party whom he ought to reasonably foresee as likely to be affected thereby.
Negligence has been viewed in three ways. Firstly involving a careless state of mind; secondly, a careless conduct; and thirdly, a tort in itself. Every case giving rise to tortious liability, consists of injury and damage may be found due to breach of contract or tort. We are concerned in this case with the injury and damage in tort.
Therefore, it is necessary to dwell, in depth, on strict inability, absolute liability or special liability. In the present case, the omission alleged is to take care of periodical check-up of the condition of the trees. The degree of liability depends upon the degree of mental element. The elements of tort of negligence, therefore, consist in (a) duty of care (b) duty owed to the plaintiff and (c) it has been carelessly breached. Negligence does not give rise to liability unless the law fastens the duty of care in given circumstances. Duty is an obligation recognised by law to avoid conduct brought with unreasonable risk of damage to another. The question whether duty consists in a particular situation involves determination as a question of law.
Negligence would include both acts and omissions involving unreasonable risk of having done harm to another.
The breach of duty must cause damage. How much of the damage to be compensated by the defendant should be attributed to his wailful conduct and how much to his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards plaintiff or class of persons to which the plaintiff belongs are important components in tort of negligence.
Negligence would, therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence. The question in each case is whether the defendant has been negligent in the performance of duty or omission thereof. Determination of duty of care also involves statutory action which requires detailed examination. Local authority, when it exercises its public law function, generally owes no private law duty of care.
Duty of care must be owed to a person or class of persons to which the plaintiff belongs and must be to avoid causing particular type of injury or damage to his person or property. The Court requires to examine the scope of duty of care which the local authority owes to the plaintiff. The court is required to consider the object, scope and breach of the Act. Though the statute is of general character, since the Government or local authority is entrusted with the duty to implement the law, though at its discretion, and if damage is done in execution thereof, what requires to be examined is whether the aforestated elements of tort of negligence stand attracted. The Court is further required to consider whether extension of duty of care by the process of interpretation would elongate the public policy or retard its object or frustrate public policy behind the statute and the inevitable effect thereof on the affected plaintiff as well as the general public. No general principle of law is desirable to be laid down as an acid test.
While considering whether an action would lie for breach of statutory duty, what requires to the established, among other things, is that the harm complained of is of the kind contemplated by the statute, as was held in Gorris vs. Scott [(1874) LR 9 Ex. 125] and Kinlgollon vs. W. Cooke & Co. Ltd. [(1956) WLR 527].
The degree of carelessness in breach f duty would, therefore, vary from case to case and it should not unduly be extended or confined or limited or circumscribed to all situations. The attending circumstances require evaluation and application to given set of facts in a case on hand.
Defendant must be under duty of care not to create latent source of physical danger/damage to the person or property of third party whom he ought to have reasonably foreseen as likely to be affected thereby. Those latent defects cause physical danger to the person or the property giving cause of action and the defendant then is liable to pay damage for tortious liability. It must, therefore, be the essential element to establish that there is positive act or duty and the defendant is under that duty. The Court is not to create, by process of interpretation, latent source of physical danger to the person or property of third party when the Act does not envisage that the defendant ought to have reasonably foreseen him as likely to be affected thereby. Negligence connotes inadvertence to the consequences of his conduct which can be a measure of behaviour where one person had been careless in that he did not behave as prudent man would have done whether by advertence or otherwise. The tort of negligence always requires some form of careless conduct which s usually, although not necessarily, the product of inadvertence. Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in failure to take such steps as a reasonable prudent man would have taken in the given circumstances. What constitutes carelessness is the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort.
The question emerges: as to when would the breach of statutory duty under a particular enactment give rise to tortious liability? The statutory duty gives rise to civil action. The statutory negligence is surgeries and independent of any other form of tortious liability. It would, therefore, be of necessity to find out from the construction of each statutory duty whether the particular duty is general duty in public law or private law duty towards the plaintiff. The plaintiff must show that (a) the injury suffered is within the ambit of statute; (b) statutory duty imposes a liability for civil action; (c) the statutory duty was not fulfilled; and (d) the breach of duty has caused him injury. These essentials are required to be considered in each case. The action for breach of statutory duty may belong to the category of either strict or absolute inability which is required, therefore, to be considered in the nature of statutory duty the defendant owes to the plaintiff; whether or not the duty is absolute; and the public policy underlying the duty. In most cases, the statute may not give rise to cause of action unless it is breached and it has caused damage to the plaintiff, though occasionally the statute may make breach of duty actionable per se. The burden, therefore, is on the plaintiff to prove on balance of probabilities that the defendant owes that duty of care to the plaintiff or class of persons to whom he belongs, that defendant was negligent in the performance or omission of that duty and breach of duty caused or materially contributed to his injury and that duty of care is owed on the defendant. If the statute requires certain protection on the principle of volenti non fit injuria, the liability stands excluded. The breach of duty created by a statute, if it results in damage to an individual prima facie, is tort for which the action for damages will lie in the suit. On would often take the Act, as a whole, to find out the object f the law and to find out whether one has right and remedy provided for breach of duty. It would, therefore, be of necessity in every case to find the intention of legislature in creating duty and the resultant consequences suffered from the action or omission thereof, which are required to be considered. No action for damages lies if on proper construction of statute, the intention is that some other remedy is available. One of the tests in determining the intention of the statute is to ascertain whether the duty s owed primarily to the general public or community and only incidentally to an individual or primarily to the individual or class of individuals and only incidentally to the general public or the community. If the statute aims at duty to protection a particular citizen or particular class of citizens to which the plaintiff belongs, it prima facie creates at the same time co-relative right vested in those citizens of which plaintiff is one; he has remedy for reenforcement, namely, the action for damages for any loss occasioned due to negligence or for failure of it.
But this test is not always conclusive.
Duty may be of such paramount importance that it is owed to all the public. It would be wrong to think that on an action, the duty could be enforced by way of damages when duty is owed to a section of public and cannot be enforced if an individual sustains damages to whom the Corporation owes no duty and no private interest is infringed. Beach of statutory duty, therefore, requires to be examined in the context in which the duty is created not towards the individual, but has its effect on the right of individual vis-a-vis the society. Statutory duty generally is towards public at large ad not towards an individual or individuals and the co-relative right is vested in the public and not in private person, even though they may suffer damages. The duty in such a case is to be enforced by way of criminal prosecution or by way of injunction at the suit under Section 192 of CPC or with leave of Court under Order I, Rule 8, CPC by public spirited person or in any appropriate manner to enforce the right and not by way of private action for damages. In that situation, the legislature, while recognising the private right vested in injured individual, may intend that it shall be maintained solely by some special remedy provided for a particular case and not by ordinary method of an action for damages as penalty or compensation.
If the statute creates right and remedy, damages are recoverable by establishing the breach of statute as the sole remedy available under the statute. But where statute merely creates a duty without expressly providing any remedy for breach of it, appropriate remedy, prima facie, is punishment for misdemeanour in respect of the injury to the public and the action for damages in respect of any special damage suffered by an individual. Where special remedy is expressly provided prima facie that was intended to be the only remedy and by implication it excludes the resort to common law. But this is also by no means conclusive. The consideration would be whether the statute intends to award damages for breach of statutory duty. Though general rule is that where a statute creates an obligation and enforces performance in a specified manner, performance cannot be enforced in any other manner. It depends on the scope of the Act which creates the obligation and on consideration of the underlying policy of the statute, effect on the individuals is to be carefully examined and analysed as to what the statute has expressly laid down or probably what the statute aims to achieve. The action for damages will not lie if the damage suffered by him is not of the type intended to be guarded against.
If statute provides that a certain thing must be done, it s a question of interpretation whether the statute aims the thing to be done in all events or merely that person whom the duty is imposed is to use due care and diligence in the performance of duty or that if he fails to perform it, though for no fault of his, he should be free from liability. When a duty is created by the statute, breach of which is an actionable tort, the question would be whether the liability is absolute or dependent on wrongful intent or negligence. It seems to be contrary to statutory intendment to impose liability upon public body for a thing for which no reasonable care in the performance of the concerned act could be inferred from the language used in the statute; it ought not to be so construed as to inflict the liability on the public authority unless the purpose sought to be achieved has been wanting due to want of exercise of duty and reasonable care in the performance of duty imposed by the statute.
It is now well settled legal position by court pronouncements in England that a public authority may be subject to common law duty of care when it exercises a statutory power or when there exists a statutory duty. The principle is that when a statutory power is conferred, it must be exercised with reasonable care so that if those who exercise their power could, by reasonable precaution, prevent any injury which has been occasioned and was likely to be occasioned by their exercise and the damage for negligence may be recovered. The above principle has been applied mainly to private acts. To establish negligence, it is necessary to show that duty to take care existed and such duty was owed to the plaintiff in Bourhill vs. Young [1943 Appeal Cases 92]. The House of Lords laid the test to ascertain whether a duty was owed to the plaintiff to see whether an injury to the plaintiff was the foreseeable result of the defendant's conduct in given circumstances. In Bolton & Ors. vs. Stone [1951 Appeal Cases 850], the House of Lords held that the foreseeability must be of reasonable possibilities. It is not necessary to show that the person who suffered damage should have been within the tortfeasor's contemplation as an identified individual as was held in Farruquia vs. Great Western Railway [(1947) 2 ELR 565], As long as harm to any person was reasonably foreseeable, it may not matter whether the precise chain of events leading to it was not foreseen as was held in In re Polemis & Furness withy & Co. [1921 King's Bench 560].
However, it has been extended to statutory duties by public authorities and notably for public utilities;
exercising the powers under public statutes. Cause of action in negligence arises under the principle of breach of duty of care existing in common law. Unless the statute manifests a contrary intention, public authority which enters upon in exercise of statutory power may place itself in a relationship to the members of the public which imposes a common law duty to take care. A breach of statutory duty may itself give rise to civil cause of action. Existence of a statutory cause of action is generally based on strict liability but it does not exclude liability for breach of common law duty of care unless a statute provides otherwise.
Statutory duty and its breach itself may give rise to a separate causation or it may be evidence of negligence of common law. Therefore, a public authority is not liable at the suit of an individual for damages for breach of a statutory duty, unless the statute on its true construction manifests a contrary intention or confers a civil cause of action.
Generally, a public authority entrusted with no statutory obligation to exercise a power, does not come under common law duty of care to do so but by conduct the public authority may place itself in such a situation that it attracts the duty of care which calls for exercise of the power. Common illustration is provided by an action in which an authority in the exercise of its functions, if it had created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory power or by giving necessary warnings. It is the conduct of the authority in creating the danger that attracts the duty of care as envisaged in Sheppard v/s. Glossop Corp. [(1921) 3 KB 132]. The statute does not by itself give rise to a civil action but it forms the formulation on which the common law can build a cause of action. If the public authority under a statutory duty places itself in such a position that others may rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action, then such a relationship would arise where a person by present or past conduct, upon which other persons come to rely, creates a self-imposed duty to take positive action to protect the safety or interest of another or at least to warn him that the or his interest is at risk or in danger. Reliance by others, therefore, has been an important element in establishing the existence of duty of care. The liability in negligence is based on the plaintiff's reliance on the defendant's taking care in circumstances where the defendant is aware or ought to be aware of that reliance. Reliance by the plaintiff, therefore, is an essential element in the action for failure to exercise the power especially when it is a power coupled with duty.
There is a distinction between failure to exercise a statutory power giving causation for damage by positive act of negligence by another and some accidental occurrence or by omission. When there is a duty to take precaution against damage occurring to others through the acts of third parties or through accident/omission of the duty, it may be regarded as materially causing or materially contributing to the damage should it occur, subject, of course, to the question whether performance of the duty would have averted the harm.
Duty of care may also exist in relation to discretionary considerations which stand outside the policy of the statute and operational factors. In the operational factors, though the statute creates discretionary function, its omission or action may also give rise to causation to claim damages. The distinction between policy and operational factors is not easy to formulate but the dividing line between then has been recognised as a distinctive determining factor. Public authority is under a duty of care in relation to decisions which involve or are directed by financial, economic, social or political factors or constraints. in that behalf, the duty of care stands excluded or any action that is merely the product of administrative direction etc. may not provide causation for damages but when the performance of the duty, though couched with discretion, is enjoined on the statutory authority, the question whether the power, if exercised with due care, would have minimised, rather prevented or avoided the damage sustained by the plaintiff, requires to be examined.
The general rule is that the public authorities are liable for positive action (misfeasance) but not for omission (non-feasance). In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighbourhood nexus which are existing between the person who suffered damages and wrong- doer where there is allegation of wrong doing it has to be seen whether the latter ought reasonable to have foreseen that the carelessness on his part, is be likely to cause damage to the other, In other words, if it is a reasonable foreseeability that carelessness on the defendant's part will cause damage to the plaintiff, then the defendant is plaintiff's neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage.
The distinction between area of public policy and operational area is a logical and convenient one as has already been elaborated. Undoubtedly, a public authority is liable for the negligent acts of its servants or agents in carrying out their duties, or exercising their powers, within the operational area, although if the performance of their duties or the exercise of their power involves the exercise of discretion. An act will not be negligent, if it is done in good faith in the exercise of , and within the limits of, the discretion.
At the cost of repetition, we may reiterate that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.
However, as a general rule, a failure to act is not negligent unless there is a duty to act. The duty may arise because of the conduct of the defendant himself or it may be created by statute. Therefore, ordinary principles of law of negligence apply to public authorities. They are liable for damage caused by a negligent failure to act when they are under a duty to act, or for a negligent failure to consider whether to exercise a power conferred on them with the intention that it should be exercised and if and when the public interest requires it. If a public authority has decided to exercise the power, and has done so negligently, a person who has acted by relying on what the public authority has done, may have no difficulty in proving that the damage which resulted from a negligent failure to act, there may not be greater difficulty in proving causation.
But if the public authority omitted to exercise its discretionary power, there is greater difficulty to prove that causation has arisen. The basic difference, therefore, between causing something and failure to prevent it from happening must always be kept in view in deciding the liability for damages resulting from the failure to perform the statutory or common law duty. The common law would not impose a duty of care on a public authority in relation to failure to exercise its power when those powers are exercisable for the benefit of the public rather than for the benefit of individuals or a class of individuals.
Statutory power is not something like a statutory duty.
Before the repository of a statutory power can be made liable for negligence for a failure to exercise it, the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed. The question whether the Act confers a private right of action depends upon the interpretation of the provisions of the Act. But by process of statutory interpretation, the courts may not superimpose a general Common Law duty on a statutory authority in order to give effect to its presumed idea of policy or duty. Common Law does not super-impose such a duty on a mere statutory authority. The nature and scope of the Common Law duty of care owed by a public authority exercising statutory powers must be discerned carefully by reading the provisions of the Act, the object it seeks to achieve and other relevant considerations. The public authority is under a duty to take some action whether or not in exercise of its statutory power or not to prevent injury only if its antecedent acts, have created or increased a risk of injury of that kind. The normal duty of care cannot be a duty to exercise the statutory power to prevent injury to another or otherwise to act in such a way as to prevent injury to him unless the Act has imposed such a duty or unless the authority has itself created or increased the risk of injury of that kind. In the absence of such a statutory duty, a normal duty of exercise of care cannot arise unless the act actually done in exercise of a statutory power, creates or increases the risk of foreseeable injury to another and then the duty is to do those acts with reasonable care and to take reasonable precautions to prevent that injury from occurring. The duty of care, therefore, must have co-relationship to the kind of damage that the plaintiff has suffered and not to the plaintiff or a class of which the plaintiff is a member.
In "The Modern Law of Tort, Landon, Sweet & Maxwell (1994 Edn.), K.M. Stanton has discussed the breach of statutory duty, express or inferential. He has stated at page 42 that the statutory tort takes a number of different forms. A number of modern statutes expressly create a detailed scheme of tortious liability. The conditions for the existence of a duty; the standard of conduct required and the available defences are all defined. The law created is part of the mainstream of tort liability. On inferential breach of statutory duty, he has stated that beach of statutory duty denotes a common law tortious liability created by courts to allow an individual to claim compensation for damages suffered as a result of another breaking the provisions of a statute which does not, on its face provide a remedy in tort. A tortious remedy is obviously available if a statute says that remedy may or may not be implied; if it is implied, it is said that the defendant is liable under the tort for breach of statutory duty. The most familiar example of this arises in relation to those areas of industrial safety legislation which have traditionally imposed criminal penalties upon an employer for breach of safety provisions, but have given no express tortious remedy to an employee injured by such a breach.
Groves v. Lord Wilborne [(1884) 2 Q.B. 402] is a leading authority in support of that liability. At page 45, he has stated on "Inferring the tort of breach of statutory duty:
presumptions and principles of construction" that breach of duty is of considerable practical importance in view of the volume of legislation made by Parliament and there are obvious advantages to be gained from any technique which assists in the prediction of results. The criticism of the presumptions must be set against the fact that they are of considerable antiquity and were approved in Lord Diplock's seminal speech in Lonrho Ltd. v. Shell Petroleum Co. Ltd.
[(1982) AC 173].
That the words in the judgment cannot be construed as in the statute and the presumptions play only limited role.
They will yield to competing evidence for the contrary result which is found in the statute. The use of presumption in relation to issues of breach of duty should not be surprising. The problem is not the normal one faced by those who have to construe statutes of attributing the particular meaning of form of wards. It is the more difficult one of discerning the intention of the legislature on a matter which has not been dealt with expressly. The use of presumptions is ideal in such a case. A presumption is, in effect, a judicial pronouncement that a particular result is to be assumed unless the contrary is stated with precision.
At page 50, it is stated on the "Obligations imposed to protect a particular class of persons" that if a statutory obligation or prohibition was imposed for the benefit of protection of a particular class of persons a presumption will arise that the tort of breach of statutory duty is to be inferred. This presumption is an exception to the presumption of a non-actionability derived from positive act. It, therefore, only applies to a statute which provides its own enforcement machinery.
This presumption requires the statute to be interpreted to see whether it was intended to benefit the interests of the public as a whole or a defined group of members of the public. At page 51, he has stated that presumptions are not decisive. When it has been decided which presumption applies to the case, it will still be necessary for the court to review the statute in question in order to determine whether the prima facie result is to be upheld. The answer must depend upon a consideration of the whole Act and the circumstances including the pre-existing law in which it was enacted. In the conclusion, it is stated at page 54 that the most significant problems stem from the difficulty of deciding whether a sufficient alternative remedy exists to involve the presumption of non-actionability and in determining whether a defined class which is intended to have enforceable rights vested in it can be identified.
Existing presumption allows sufficient freedom of manoieuvre for courts to ensure that sensible decisions are reached. If the courts were to regard statutes containing no enforcement machinery and all other duties over which they had any doubt as being passed in the public interest, rather than as intended to vest rights in a defined class of private individuals; were to regard the existence of standard common law and administrative law remedies as raising the presumption of non-actionability and were to keep Lord Diplock's concept of rights vested in the public for highly exceptional cases, the results would not be very different from those reached by the existing cases. However, the chance of a new area of breach of statutory duty appearing would be effectively eliminated. There are, of course, great practical problems in ensuring that the judiciary adopts a common approach of this kind. It could probably only be achieved as a result of an authoritative statement given by the House of Lords.
Michael A. Jones on Torts [Fourth Edition] 1995 [Lawman (India) Private Limited] in Chapter II states under the heading "Negligence: duty of care", that as a tort, negligence consists of a legal duty to take care and breach of that duty by the defendant causing damage to the plaintiff. Duty determines whether the type of loss suffered by the plaintiff in the particular way in which it occurred can ever be actionable. Breach of duty is concerned with the standard of care that ought to have been adopted in the circumstances, and whether the defendant's conduct fell below that standard, i.e., whether he was careless. The division of negligence into duty, breach and consequent damage is convenient for the purpose of exposition but it can be confusing because the issues will often overlap. He has elaborated the general principles, viz., the neighborhood principle as laid down in Donoghue v. Stevension [(1932) AC 562] and has stated at page 27 that the result would seem to be that factors which formerly might have been considered at the second stage of Lord Wilberforce's test, policy considerations which ought to `negative, or to reduce or to limited the scope of the duty', should be taken into account at an earlier point when deciding whether a relationship of proximity between plaintiff and defendant exists. The second stage of the test will apply only rarely, i.e., in a limited category of cases where, notwithstanding that a case of negligence is made out on the proximity basis, public policy requires that there should be no liability. This new approach represents a shift of emphasise rather than a new substantive test for the existence of a duty of care. In future, rather than starting from a prima facie assumption that where a defendant's carelessness causes foreseeable damage, a duty of care will exist, subject to policy considerations which may negative such a duty. The courts will determine the duty issues on a case by case basis, looking in particular at the nature of the relationship between parties to determine whether it is sufficiently proximate. That question is of an intensely pragmatic character, well suited for gradual development but requiring most careful analysis. The following requirements must be satisfied before a duty of care is held to exist:
(i) foreseeability of the damage;
(ii) a sufficiently proximate relationship between the parties; and (iii) even where (i) and (ii) are satisfied it must be just and reasonable to impose such a duty.
At page 30, he has stated relationship of "Foreseeability and proximity" thus: The concept of foreseeability, i.e., what a hypothetical reasonable man would have foreseen in the circumstances, is ubiquitous in the tort of negligence. It is the foundation of the neighbour principle, but it is also used as a test of breach of duty and remoteness of damage. The fact that particular consequences were unforeseeable may lead to the conclusion that the defendant's behaviour was not careless and even where negligence is patent, damage of an unforeseeable kind will be regarded as too remote and therefore not actionable.
This is partly related to the notion of fault liability. It can hardly be said that someone is blameworthy if harm to others could not reasonably have been anticipated. (The other standard to fault liability is whether the conduct was reasonable in the face of foreseeable damage). It is important to realise, however, that a foreseeability is a very flexible concept. One man's reasonable foresight is another man's flight of fancy, and so the bounds of what is foreseeable can be stretched or narrowed as the case may be.
The likelihood that a particular event may occur in a given set of circumstances may range from almost certainty t virtual impossibility, and in deciding whether it was foreseeable involves a choice. There is no fixed point on the graph at which the law requires people to take account of a possibility. It is not a totally unprincipled choice since the degree of foreseeability required may be varied with the kind and extent of the damage, and the nature of the relationship between the parties. The low must be reasonably foreseeable, which may mean that it must be foreseeable as a possibility or probable or more probable than not or likely or very likely. This scope for ambiguity allows the concept of foreseeability to be used as a control mechanism to admit or deny recovery of damages in certain types of cases. This becomes most apparent when the courts feel constrained, either by authority or reasons of policy, to deny liability and do so by relying on an absence of reasonable foreseeability which attributes to the reasonable man an abnormal degree of myopia.
The proximity is usually used as shorthand for Lord Atkin's neighbour principle. This refers to legal not physical proximity. Physical proximity may be relevant in deciding whether the parties should be treated as neighbors in law, but it is not an essential requirement. On the "principle of duty and unforeseeable plaintiff, the word `duty' is used in, at least, three different senses. First, duty of care may signify the recognition of liability for careless conduct in the abstract - is this type of harm occurring in this kind of situation ever actionable? Where the courts deny liability by holding that there is no duty of care even though the neighbour principle appears to be satisfied they are setting the limits of actionability in negligence as a matter of policy. Foreseeability may be necessary but it is not a sufficient criterion of liability.
Secondly, even where it is accepted that a particular type of loss is capable of giving rise to liability in negligence, the court may conclude that the defendant did not owe a duty of care to the particular plaintiff if the plaintiff was unforeseeable. The plaintiff cannot rely on a duty that the defendant may have owed to others. The third sense in which the word duty is sometimes used is in the context of breach of duty. Where the question is whether the precautions against a particular risk taken by the defendant fall below the standard that a reasonable man would have undertaken, the court may ask whether the defendant who under a duty was to take further precautions? Here duty is superfluous, it merely signifies the obligation to be careful by adopting the standard of care of a reasonable man.
On the principle of "Policy and the function of duty", it is to remember that the concept of duty adds nothing to the tort of negligence. In some circumstances, a person is held liable for the negligent infliction of damage, and in other circumstances he is not. In the first set of circumstances it is said that a person owes a duty of care, and in the second set that there is no duty. Duty is merely the logical equivalent of actual legal liability for damage caused by negligence. Thus to say that a duty of care exists is to state as a conclusion that {not as a reason why} this damage ought to be actionable. It is circle to argue that there is no liability because there is no duty. Law has always drawn a distinction between the infliction of harm through some positive action and merely allowing harm to occur by failing to prevent it. This is the distinction between misfeasance ad non-feasance, but it is not always easy to make. In many cases an omission may simply be part and parcel of a course of conduct that constitutes a negligent way of acting.
In Clerk and Lindsell on Torts [The Common Law Library No.3] [Sixteenth Edition] - London, Sweet & Maxwell, 1989 it is stated in Chapter 4, Para 2 "Duty of Care Situation" at page 429 that no action lies in negligence unless there is damage. In case of personal injuries damage used to be understood to have been inflicted when injury was sustained by the plaintiff, whether he was aware of it or not. At page 430, he has stated that the tort of negligence is committed when the damage is sustained, however the date of damage is determined. There duty in negligence, therefore, is not simply a duty not to act carelessly; it is a duty not to inflict damage carelessly. Since damage is the gist of the action, what is meant by "duty of care situation's is that it has to be shown that the courts recognise as actionable the careless infliction of the kind of damage of which the plaintiff complains, on the type of person to which he belongs, and by the type of persons to which the defendant belongs. It is essential in English law that the duty should be established; the mere fact that a man is injured by another's act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional so long as the other party is merely exercising a legal right; if the act involves a lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.
In most situations it is better to be careful than careless, but it is quite another thing to elevate all carelessness into a tort. Whether there is liability in the given situation depends on there being careless behaviors by the defendant, causation of damage ad foreseeability of that kind of damage to the particular plaintiff. At page 436, on the doctrine of "Damage to the person", it is stated that there is an obvious form of recognised damage and requires no elaboration. Even while the law remained reluctant to recognise economic loss caused by careless false statements, it saw no difficulty in recognising liability for injury to the person caused by them.
There is a distinction between misfeasance (positive action) and non-feasance (omission). Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty.
In the case of misfeasance, t e defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. In "The Law of Torts" by John G. Fleming (8th Edn.) 1992, at page 435 on the Chapter of `Public Authorities', the author has stated that although public authorities enjoy no immunity as such from ordinary tort liability, a protective screen has long remained in the vestigial "non-feasance" rule that mere failure to provide a service or benefit pursuant to statutory authority would ordinarily confer no private cause of action on persons who thereby suffer loss. In an article "Affirmative Action in the law of Tort: The case of the Duty to Warn" published in [1989 (48) Camb. Law Journal] at pages 115-116 it is stated that the distinction between acts [misfeasance] and omissions [non-feasance] sometimes referred to as pure omissions, though a fundamental one, is not one which is easy to make. F.H. Bohlen suggested that "misfeasance differs from non-feasance in two respects: in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof". The first aspect relates to the distinctio
