A RAJKOT MUNICIPAL CORPORATION

v.

MANJULBEN JAY ANTILAL NAKUM AND ORS.

JANUARY 17, 1997

B [K. RAMASWAMY.AND G.B. PAITANAIK, JJ.)

Torts:

Negligence-Breach of duty-Carelessljr-By Public Authority-

C Damages fo~iability-Arising of-Factors to be considered-Deceased

while walking on footpath of a public road was struck by a roadside tree,

which suddenly fell on him in still weather condition resulting in his

death-Suit ftled by deceased's wife and children claiming damages from

Municipal Corporation on ground of negligence in not properly maintaining

roadside trees-Held: Proximity of relationship between person who suffered

D damages and the wrong doer, foreseeability of danger and duty of care owed

by public authority must be established--Burden

of proof

on plaintiff-Plain·

tiff could not succeed by merely establishing occwrence of accident due to

negligence i.e. ~efendant's failure to take reasonable care as ordinal)' prudent

matt-Foreseeability of damage or danger to person or property must be

E ~a-related to public duty of care-Duty of care should be to avoid causing of

present or imminent danger created by positive act of public authority-Harm

complained

of must be of the kind contemplated by statute-Action for

damages would not lie

if statute did not

intend to guard the kind of damage

suffered or

if some other remedy was available or provided by

statute-in the

circumstances of the case, Corporation not liable for damages-Proximity of

F relationship and foreseeability of danger not fountl-Corporation could not

be expected to have a duty to maintain constant supervision by testing the

healthy condition

of

the tree.~Special circumstances to be taken into account

stated-Bombay Provincial Municipal Corporation Act, 1949.

G Negligence-StatutOTy Corporation or public authority-Municipal Cor-

poration-Principle

of law of

negligence-Applicability of-Held: Situations

different when act was one of commission and one of omission-Act would

110t be negligent, if it was done in good faith in the exercise of, and within the

limits of, the discretion.

H Negligence-Before the repository of statutory power could be made

304

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL 305

··~ ...,

liable for negligence for a failure to exercise it, the statute must impose a A

statutory duty and confer a private right of action in damages for breach

thereof-But common law duty must not be superimposed through process of

statutory interpretation-Duty of care when arose, discusse~ereseeability

as test-Imminent danger theory-The duty of care should not'impose an

intolerable burden on the public authority and prevent it from peifomting its

B

,... nonnal duties.

,.

~

Negligence--Misfeasance and non-feasance-Distinction be!ween-Ex-

plained.

Damages-Tortious liability-Held: In absence of statutory law in this

c

regard, common law principles evolved in Engla11d might be applied in India

to the extent of suitability and applicability to Indian conditions.

Statutory Corporation~unicipal Corporation-Held; could be held

liable and be sued for wrongs involving fraud, malice as well as for wrong in

which intention was immaterial. D

·"r

Tort and contract-Distinction betweert-Explained.

Interpretation of Statutes:

Legislative intent -Detennination oj-:£xplained. E

Wordf and Phrases: "Misfeasan ce and non-feasance '~ "Negligence" and

"duty'

'-Meaning oHn

tlte context of Law of Torts.

Legal Maxims : "volenti non fit injuria" and "novus actus interveniens'

-Applicability of F

The d eceased was· walking on footpath of a public r oad on the way

to his

office, when a roadside

tree, which was in a still cundition, had

sudd

enly fallen on him, as a

result of which he sustained injuries on his

head a

nd other parts of the body and later died in the hospital. The

G

respondents, being the d eceased's widow. and children,

ftled a suit for

damages in a sum of Rs.

llakh

from the appellant-Corporation. The trial

--":" .....

Court decreed the suit for a sum of Rs.45,000 finding that the appella nt

had failed in its statutory duty to check the healthy condition of trees and

to

protect the deceased from the t ree falling

on him resulting in his de ath:

On appeal, the Division Bench had held that the appellant had statutory H

306 SUPREME COURT REPORTS [1997] 1 S.C.R.

A duty to plant trees on the roadsides as also the corresponding duty to

maintain the trees in proper condition. The statutory duty gave 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 'could not be called

,

B upon to prove that the tree had fallen due to the appellant's negligence.

Statutory obligation to maintain trees being absolute, and since the tree

had fallen due to its decay, the appellant had 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

C and examination. Therefore, the appellant had not taken care to foresee

the

risk of the tree's

faJiing and causing damage to the passers-by. Thus

the appellant was liable to pay damages for the death of tbe deceased. The

Divisi~n Bench accordingly confirmed the decree of the trial Court. Hence

this appeal.

D

Allowing the appeal, this

Court

HELD: 1.1. Negligence is failure to use such care as a reasonable,

prudent and careful person would use, under similar circumstances. It is

E 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 ordi­

nary 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

F would not do. 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 defen·

dant should be attributed to; his wilful conduct and how much to his wilful

negligence

or careless conduct or remissness in performance of duty, are

G 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 the plain tilT or class of persons to which the plaintiff

belongs

are important components in tort of negligence.

Negligence would,

tlterefore, mean careless conduct

in commission or omission of an act,

H whereby another to whom the

plaintiff owed duty of care has suffered

RAJKOTMUNTCIPALCORPN. v. MANJULBENJAYANTILAL 307

"'Y

damage. The duty of care is crucial in understanding the nature and scope A

of tort of negligence. [326E-F; 328-E-F; 327-C-D]

Black's Law Dictionary (6 th. Edn.), p. 1489, referred to.

1

.2. Negligence connotes inadvertence to the consequences of his

conduct which can be a measure

of behaviour where one person had been B

careless in that he did not behave as a prudent man would have done

~ )

whether by advertance or othenvise. The tort of negligence always requires

some form of careless conduct which is usually, although

not necessarily,

the product of

inadvertenc~. Not every careless conduct which causes

damage, however,

will give rise to an action in tort. The negligence lies in

c

failure to take such steps as a reasonable prudent man would have taken

in the

given circumstances. ~at constitute carelessness are the conduct

and not the result of inadvertence. Thus n egligence in this sense is a

ground for liability in tort. [329-E-G]

1.3. Th~ defendant must be under duty of care not to create latent D

..,.

course 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

E

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 hi_m as

~

likely to be affected thereby. [327-G-H; 328-A)

F

1.4. In every cas~ giving rise to tortious liability, to rt consists of

in.jury

and damage due to negligence. Claim for injury and damage may

be founded on breach of contract

or tort. The

liability in tort may be strict

liability, absolute liability or special liabilit y. The d egree of liability

depends on degree of mental element. The elements of

tort of

~egligence

G

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

-J

law exacts a duty in the given circumstances to observe care. Duty is an

obligation recognised by law to avoid conduct fraugbt with unreasonable

risk or damage to others. The qu estion whet"er duty exists in a par-ticular

situation involves determination of law. [326-H; 327-A; 328-C-D] H

308 SUPREME COURT REPORTS [1997] 1 S.C.R.

A 1.5. The Court requires to examine the scope of duty of care, which

the local authority

owes to the

plaintiff. The Court is rec1uired to cons~r

the object, scope and breach of the Act, viz. the Bombay Provincial

Municipal Corporation Act, 1949. Though the s tatute Is of general char­

acter, since the Government or local authority is entrusted with the duty

B 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 re·

quired 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 b~hind the statute and the inevitable effect thereof

C on the affected plaintiff as well as the general publi c. No general principle.

of law is desirable to be laid down as an acid test. [329-A-C]

Donoghue v. Stevenson, (1932) AC 562, referred to.

D 2.1. While considering whether an action would lie for breach of

statutory duty, what requires to be established, among other things, is that

the harm complained of is of the kind contemplated by the s tatute. The

question emerges: as to when would the breach of statutory duty under a

particular enactment give rise to tortious liability? The statutory

negligence is sui generis and independent of any other form of tortious

E liability. It would, therefore, be of necessity to find out from the construe·

tion

of each statutory duty whether the particular duty is general duty in

public Jaw or private law duty towards the plaintiff. The plaintiff must

show that (a) the injury

suffer·ed is within the ambit of statute: (b)

statutory duty imposes a liability for civil action: (c) the statutory duty was

F not fulfilled: and (d) the breach of duty lias 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 liability which is required, therefore, to be considered ·in the nature of

statutory duty the defendant owes to the plaintiff; whether or not the duty

G is absolute; and the public policy underlying the duty. In most cases, the

statute may not give rise to cause of action unle ss 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

H was negligent in the performance or omission of that duty and breach of

'

•

)

RAJKOTMUNICIPALCORPN.v. MANJULBENJAYANTILAL 309

duty caused or materially contributed to his injury and that duty of care A

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 in an individual_prima

facie, is tort for which the action for damage will lie in the suit.

One would

often take the Act,

as a whole, to find out the object of the law and to find B

out whether

one has right and remedy provided for breach of duty. It wol!ld,

therefore, be of necessity in every case to find the intention of legislature in

creating duty and the resultant cons~quences 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

avdilable. One of the tests in determining the intention of C

the statute is to ascertain whether the duty is owed primarily to tbe 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

protect a particular

citiuD or particular class of citizens to which the plaintiff belongs, it prima D

facie creates at the same time co-relative right vested in those citizens of

which plaintiff is one; he has remedy for enforcement, namely, the action

for damages for any loss occasioned due to negligence

or for failure of it.

But this test

is not always

conclusive. [329-C-D; 330-B-R; 331-A-B]

Gonis v. State, (1874) LR 9 Ex. 125 and Kinlgollon v. W.Cooke & Co. E

Ltd., (1956) WLR 527, referred to.

2.2. Duty may

be of such paramount importance that it is owed in

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 in a section or public F

and cannot be enforced

if an individual su stains damages to whom the

Corporation

owes no duty and no

private interest Is infringed. Breach 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 toWdrds G

public at large and 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 c-dse is to be enforced

by way of criminal prosecution or by way of injunction at the suit under

Section 192 of the Code of Civil Procedure, 1908 or with leave of Court

under Order I, Rule 8, CPC by public spirited person or in any appropriate H

310 SUPREME COURT REPORTS [1997] 1 S.C.R.

A manner to enforce the right and not by way of private action for damages. or

B

In that situation, the legislature, while recognising the private right vested

in an 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. [331-C-F}

2.3.

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

C the action for damages in respect of any special damage suffered by an

individual. Where special

remedy is e¥pressly 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

D 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

obli&ration 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

E 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. It seems to be contrary to statutory intendment to impose liability

upon public body for a th~ng for which no reasonable care in the perfor­

mance of the concerned act could be inferred from the language used in

F the statute; it ought not to be so construed as to innict the liability on the

public authority unless

the purpose sought to be achieved has been

want­

ing due to want of exercise of duty and reasonable care in tlte performance

of duty impos ed by the statute. [331-F-H; 332-A-B; D-E)

3.1. Ordinarily principle

of the law of negligence applies to public

G authorities als.o. They are liable to damages because by a negligent act or

failure to act when they are under duty to act or for a failure to consider

whether to exercise a power conferred on them with the intention that it

would be exerci sed if and when public interest requires it. Where the public

authority bas decided to exercise a power and has done it negligently a

H person, who has acted in reliance on what the public authority h as done,

. ..,.

.,.

.(

RAJKOTMUNICIPALCORPN . V. MANJULBEN JAYAN11LAL 311

may have no difficulty in proving that the damages which be bas suffered A

have been caused by the negligence. Where the damage has resulted from

a negligent failure to

act there may be

greater difficulty in proving causa-

tion and requires examination in greater detail. The liability in tort is for

the damage done, not for damage merely foreseeable or threatened or

imminent. [335-F-G; 344-F-G)

3.2. 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

B

be affected by tbe.exercise of power or duty, the courts have evolved the

relationship of proximity or neighbourhood nexus, which exists between C

the person who suffered damages and wrong doer. Where there is allega·

tion of wrong doing it bas to be seen whether the latter reasonably ought

to have foreseen that the carelessness on his part, is likely to cause damage

to the other. If it is a reasonable foreseeability that carelessness on the

defend_ ant's part will cause damage to the plaintiff, then the defendant is D

plaintitl'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. [334-G-H; 335-A·B]

33. The distinction between area of public policy and operational

area is a logical and convenient one. Undoubtedly, a public authority is E

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 th~ 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. [33S.C-D] F

4.1. Statutory power is not something like 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 G

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

c~urts may not superimpose a general Common Law duty on a statutory

authority in order to give effect to its resumed idea of policy or. duty.

Common Law does not super-impose such a duty on a mere statl,ltory H

312 .SUPREME COURT REPORTS [1997] 1 S.C.R.

A 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 J.lrovisions of the Act, the objl'.ct it seeks to achieve and other

relevant con siderations. The public authority is under a duty to take some

action whdhcr or not in exercise of its statutory power or not to prevent

B 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 in another or otherwise to act in such a

way as to prevent injury to him 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

C done in exea·cise 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 occ urring. The duty of care, therefore, must have co-relations hip to

the kind of damage that the plaintiff bas suffered and not to the plaintiff .

D or a class of which the plaintiff is a member. These cases relate to private

law tort. [336-B-G; 346-A]

E

Oversea? Tanks/zip (U.K.) Ltd. v. Morts Docks alld Engineering Co.

Ltd., (1961) AC 388, referred to.

4.2.

The proper approach, therefore, is to cons ider

whether a duty of

care situation exists in public law tort which the law ought to recognise

and whdher in that situation the defendant's conduct was such that he

should have foreseen the damage that would be innicted on the plaintiff.

As a general rule of law, one man is under no duty to control another so

F as to prevent· the IaUer from doing damage to a third. The first question

to be considered is: whether the plaintiff bas established necessary

relations hip giving rise to the duty of care? The next question is whether

there is any negligence at the time when the act in question was committed?

The

act complained of must have rational relationship to the damage

caused. The tort of negligence does not depend simply on the question of

G foreseeability. Foreseeability is not the sole criteria

nor does the fact that

the damage is foreseeable creates any onus. What the court would ask or

look at is the operational s tructure of the Act. Is this a s ituation where a

duty does exist towards the plaintiff or class or persons to whom he belongs

keeping in mind tbe nature of the functions a nd the interest of tbe ·

H community? The further question would be: whether the damage to the

~

RAJKOT MUNICJP AL CORPN. v. MANJULBEN JAY ANTILAL 313

plaintiff is so foreseeable? In that behalf it must be further seen whether A

"'

there was sumciently proximate relationship between the plaintiff and the

1

defendant. [346-A-EJ

4.3. Each case requires to be examined in the light of the special

circumstances, viz., whether the defendant owed a duty of care to the

B

plaintiff, whether the plaintiff is person or a class of persons to whom the

defendant owed a duty of care, whether the defendant was negligent in

performing

that duty or omitted to take such reasonable care in the

..,

performance of the duty, whether damage must have resulted from that

particular duty of care which the defendant owed to the particular plaintiff

or class of persons. Public authorities discharge public obligations to the c

public at large. Therefore, it owes duty of care at common law to avoid

causing present

or imminent danger to the safety of the J'laiotiff or a

class

of persons to whom the plaintiff belongs. It is a statutory duty of care

under common law which could give rise to actionable claim·in the suit of

'

the individual and it is capable of co-existence along side a statutory duty.

D

The duty of care imposed on a local authority by law may not be put beyond

.,... what the statute expects of the local authority or Corporation to perform

· the duty. The tort of insuperable negligence would emerge from imminent

danger created by positive act.

But the duty of care imposed on local

authority by law may

be gauged from the circumstances in which and the

conditions subject to which the

duty

of care has been imposed on the E

statutory authority. The immin.ent danger theory must be viewed keeping

at the back of mind the act or conduct creating the .danger to the plaintiff

or the class of persons to which he belongs and that by negligent conduct

the defendant causes damage to the property or person of the plaintiff,

though the defendant is not in know

of the danger. The defendant also in

F

,.

given circumstances, must owe special responsibility or proximity impos·

ing foreseeable duty to care, to safeguard the plaintiff from the danger or

to prevent it from happening. [359-H; 360-A-DJ

4.4. There must exist some proximity of relationship, foreseeability

G

of danger and duty of care to be performed by the defenda nt to avoid the

1 accident or to prevent danger to person of the deceased. The requisite

•

degree of proximity requires to be established by the plaintiff in the

:-·-+

circumstances in whicb the plaintiff was injured. The plaintiff would not

succeed by establishing that the accident had occurred due to negligence,

i.e., the defendant's failure to take reasonable care as ordinary prudent H

314 SUPREME COURT REPORTS {1997] 1 S.C.R.

A Dlan, under the circumstances, would bave taken and the liability in tort

to pay damages had arisen. If the defendant had become aware of the

decayed co~dition or that the tree was affected by disease and taken no

action to prevt:nt the accident, it would be actionable, though for non­

feasance. Mere a ppearance of danger gives rise to no liability. Actual

B damage had occurred before tortious liability for negligence arose. When

the defenda nt is under statutory duty to take care not to create latent

source of physical danger to the property or the person who in the

circumstances is considered to be reasonably foreseeable as likely to be

affected thereby, the defendant would be liable for tort of negligence. If the

latent defect causes actual physical damages to the person, _the defendant ·

C is liable to damages for tortious liability. The negligent act or omission of

the statutory authority must be examined with reference to the statutory

provision s, creating the duty and the resultant consequence. The negligent

act or omission must be specifically directed to safeguard the public or

some sections of the public to which the plaintiff was a member, from tht

D particular danger, which bas resulted. [360-G-H; 361-A-C)

S.l. The exercise of power/omissions must have been s uch that duty

of care bad arisen to avoid danger. Foreseeability of the danger or injury

alone is n ot sufficient to conclude that duty of care exists. The fact that

one could foresee that a failure of the authority to exercise a reasonable

E care would cause loss to the passers-by itself does not mean that such a

duty

of care should be imposed on the statutory authority. The statutory

authority exercises its public law duty or function. It would be wrong to

think that the local authority always

owns responsibility and continues to

have the same state of alT.airs. It would be an intolerable burden of 4uty

p of care on the authority; otherwise it would detract the authority from

perfonniog

its normal duties. If he were to gauge the risk of litigation, he

would avoid doing public duty of planting and nurturing the trees

thinking

that it would be a hea~ burden on the local authority. It would always cause

hea~ financial burden on the statutory authority. If the duty of maintaining

constant vigil or verifying or testing the healthy condition of trees at public

G places with so many other functions to be perl'ormed were cast on it, the effect

would be that the authority would omit to perform statutory duty. Duty of

care, therefore, mu st be carefully examined and ti1e foreseeability of damage

or danger to the person or property must be co-refated to the public duty of

care to infer that the omission/non-feasance gives rise to actionable claim for

H damages agaJD$t the defendant. [361-D-G]

"

[

t

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL 315

5.2. When a person uses a road or highway, under common law one A

..... . 'I'

has a right to passage over the public way. When the defendant creates by

positive action any danger and no signal or warnings are given and

consequently damage is done, the proximate relationshii' gets established

between the plaintiff and the defendant

and the causation is not too

remote. Eljually,

when the defendant omits to

perform a particular duty

B

enj?ined by the statute or does that duty carelessly, there is proximity

between the plaintiff injured person

and the defendant in performance of

·:...

.,. the duty and when injury occurs or damage is suffered to person or

' property, cause of action· arises to enable the plaintiff to claim damages

from the defendant. But when the causation is too remote,

it is difficult to

. anticipate with any reasonable certainty as ordinary reasonable prudent c

l

man, to foresee damage or injury to the plaintiff due to causation or

omission on the part of the defendant in the performance or negligence in

the performance of the duty. [361-H; 362-A-C)

5.3. When the defendant was not in know of the discoverable defect

D

or danger and it had caused the damage by accident like sudden fall of the

:>-

tree, it would be difficult to visualise that the defendant had knowledge of

the danger and he had omitted to perform the duty of care to prevent its

fault. There would be no special relationship between the

statutory

authority and the plaintiff who is a remote user of the footpath of the street

E

by the side of which the trees were planted, unless the defendant is aware

of the condition of the tree that it is

likely to fall on the footpath on which

the plaintiff/class of persons to which he belongs frequents it. The defen·

dant by his non-feasance is not responsible for the accident or cause of the

death since admittedly there was no visible sign

that the tree was affected

...,. by disease. It had fallen in a still condition of weather. [360-D-F] F

· 5.4. In determining the legislative intent, the Court is required to

consider three factors, viz., the context

and the

o~jcct 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

G

promote facilities of general

benefit to the public as a whole in getting the

trees planted on roadsides, 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 H

316 SUPREME COU RT REPORTS (1997]1 S.C.R. t .

A 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 statue, the court is required to examine

all the provisions to find out the precise purJ)OSe 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

;.

B

i

the damage suffered by him is not of the kind intended to be protected by r .

the Act. (321-G-H; 322-A-B]

..

"'i 6.1. The statute enjoins a power to plant trees on the roadsides or

in public places. There is no statutory sanction for negligence in that

c behalf. But the question is: whether the statutory function to plant trees

gives rise to duty of maintaining

the trees. In a developing society it is but

obligatory on every householder, when be constructs bouse and

equally for

a public authority to

plant trees and properly nurture them up in a healthy

condition so

as to protect and maintain the ceo-friendly environment. But

r

D

the question is: ·whether the public authority owes a statutory duty towards ~

that class of persons who frequent and pass and repass on the public

highway

or road or the public places. If the local authority/statutory body

~

has neglected to periorm the duty of maintaining trees in a healthy

condition

and when damage, due to fall of the tree occurs, the question

emerges whether the neighbour relationship a

nd proximity or the causa-

E tion and negligence and the duty of care towards the plaintiff have been

satisfactorily proved to have existed

so as to fasten the defendant with the

liability due to tort of negligence. It depends on a variety of facts and

circumstances. It is difficult to lay down any set standards for

proof

~

,., thereof. [362-D-G]

F

6.2. In a situation like the present one where the victim being not

.,....

aware of the disease/decay, the tree suddenly falls in a still weather

condition,

no one can anticipate and it is difficult to fore see that a

tree }

would fall suddenly and thereby a person who would be passing by on the

G

roadside, would suffer injury or would die in consequence. The Corpora·

tion or the authority is not liable to be sued for tort of negligence since the

causation is too remote. Novus actus inconveniens snaps the link and, -·

therefore, it is difficult to· establish Ia ck of care resulting in damage and

foreseeability of tbe damage. The case in band falls in this category. The ..__

deceased was admittedly passing on the roadside to attend to his office

H duty. The tree suddenly fell and he sustained Injury and consequently died.

...

RATKOTMUNICIPALCORPN . v. MANJULBEN JAYAN'JlLAL 317

It was difficult to foresee that a tree would fall on him. (363-D-Fl A

7. The conditions in India have n ot developed to such an exte nt that

a Corporation can keep constant vigil by testing tht healthy condition of

the trees in the public place s, roadside, highway fr equented by passers-by.

There is no duty to maintain

regular supervision thereof, though the

local B

authority/other authority/owner of a proptrty is undet· a duty to plant and

maintain the tree. The causation for accident is too remote. Conse<JUently,

~ · ·.. there would be no Comr_non Law right to file suit for t ort of n~:gligen ce. It

would not be just and proper to fasten duty of care and liability for

omission thereof.

It would be difficult for the

focal authority etc. to foresee

such

an occurrence.

Under these circumstances, it would be diffic ult to C

conclude that the appellant has been negligent in the maintenance of the

trees planted by it on the roadsides. (363-(;..H; 364-A]

Bourhill v. Young, (1943) AC 92; Bolton & Ors. v. Stone, (1951) AC

850; Fanugia v. Great Western R/y., (1947) 2 AllER 565; In re Po/emis & D

1

Furness, Withy & Co. Ltd., (1921) 3 KB 560; Sheppaard v. Borough of

G/ossoppp, (1921) 3 KB 132; Groves v. Lord Wimbome, [1898] 2 QB 402;

Lonrlw Ltd. v. Shell Petroleum Co. Ltd., (1982) AC 173; Hadely v. Baxendale,

(1854) 9 Ex 341; Haynes v. Hanvood, (1935)1 KB 146; Dorser Yacht Co. v.

Home Office, (1970) AC 1004; Kemp & Dougall v. Damgavil Cool Co. Ltd.,

(1909) AC 1314; Geddis v. Proprietors of Bonn Reservoir, (1878) 3 AC 430; E

Murphy v. Brentwood Distt. Council, (1991) 1 AC 398; Anns v. Merton

London Borough, (1978) AC 728; Caparo Industries Pic. v. Dickman, (1990)

2 AC 605; Hill v. Chief Constable of West Yorkshire, (1989) AC 53;.Smith v .

Littlewoods Organisation Ltd., (1987) AC 241; London Passenger Transport

Board v. Upson, (1949) AC 155; Stovin v. Wise (Norfolk County Council, F

Third Party), (1994) 3 All ER 467; Burton v. West Suffolk County Council,

(1960) 2 WLR 745; Blyth v. Binningham Watenvorks Co., (1856) tl Exch.

781; Pardon v. Harcourt Rivington, (1?32) 146 LT 391; Baxter v. Stockton­

on-Tees Corpn., [1959) 1 QB 441; Wilson v. Kingscon-upon-Thames C01pn,

(1949) 1 All ER 679; CA, Noble v. Harrison (1926) 2 KB 332; Barker v.

Herbert (1911) 2 KB 633; Cunliffe v. Bankes (1945) 1 All ER and Caminer G

v. Nonhem & London Investment Tmst Ltd., (1950) 2 All ER 486, referred

to.

Hedley Byrne & Co. Ltd v. Heller & Partners Ltd., (1964) AC 465;

Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. H

318 SUPREME COURT REPORTS [1997] 1 S.C.R. ·

A Ltd., (1985) AC 10; Leigh and Sillavan Ltd. v.Aliakmon Shipping Co. Ltd.,

(1986) AC 785; Curran v. Nort!tem Ireland Co-ownership Housing Assn. Ltd.,

(1987) AC 718; Council of the Shire of Sutherland v. Heyman, (1985) 157

CLR 424; Rylands v. Fletcher, (1986) 3 HL 330 and Yzwt Kun-Yey v. Attorney

General of Hong Kong, (1988) AC 175, cited.

B 8. Thete is a distinction between misfeasance (positive action) and

non-feasance (omission). Misfeasance is wilful, reckless or heedless con­

duct 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

C duty. In the case of misfeasance, the 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.

[342-D-F}

D 9. There is no

statutory law in India, unlike in England regulating

E

F

damages for tortious liability. In the absence of statutory law in this regard

in India, 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.

[324-G·H; 325-A]

Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai

[1987] 3 SCC 234 and KRamdas Sltenoy v. The Chief Officer, Town

Municipal-Council, Udipi & Ors., AIR (1974) SC 2177, relied on.

Stevens v. Midland Counties Rly. Co., (1854) 10 Ex. 352, referred to.

10. It is well settled that a Municipal 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. [325-C)

Barwick v. English Joirzt Stock Bank, (1867) LR 2 Ex. 259; Comford v.

G Carlton Bank, [1900] l QB 22 and Glasgow Corporation v. Loremer, (1911)

AC 209, referred to .

. 11. 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 faxed by law while in contract

H it is faxed by the parties themselves. In tort, the duty is towards tbe persons

.>

-+

RAJKOTMUNICIPAL CORPN. v. MANJIJLBEN JAY ANTli..AL(RAMASWAMY, J.) 319

generally while in contract it is towards specific person or persons. If the A

claim depends upon 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 plain tifT, although

he might alternatively have pleaded in contract.

[325-E-F]

Sir Percy Winfield: "Province of the Law of

Tori'~ p 32; Clerk and B

Liodsell: "Torts'~ Common Law Library, Series No. 3 (12th Edn.) Ch. 3, p

I, para I, Cb. 4, para 2; Oliver Lindel Holmes : "Common Law", (1881 Edn.)

p

96; Michael A. Jones : "Torts" (Fourth Edn.) 1955;

Lawman (India) Pvt.

Ltd. Ch. n, p 30 and "Affirmative Action in the law of Tort : The case of

the Duty to Wam", (1989) 48 Camb. Journal, pp. 115-116. C

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 200 of

1997.

Form the Judgment and Order dated 20.3.91 of the Gujarat High

Court

in F.A. No. 259 of

1980. D I'

Mukul Mudgal for the Appellant.

P.S. Narasimha, (A.C.) for the Respondents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Leave granted.

This appeal by special leave arising from tbe judgment ·of the Division

Bench

of the Gujarat High

Court, dated March 20, 1991 ~n First Appeal

No. 259 of 1980, gives rise to an important question of law of liability for

negligence in causing

Lhe death of one 1ayaotilal, the husband of the

respondent No.

1 and father of tbe respondents Nos. 2 to 4 due to sudden

fall of a tree while he was passing on the road in

Kothi compound of

Colleclorate on his way to attend to his duties as a Clerk in the offiee of

the Director of Industries, Rajkot. ·

E

F

G

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 hi-; office, a road-side tree suddenly feU on him as a

result

of which he sustained injuries on his head and other parts of body H

320 SUPREME COURT REPORTS [1997}1 S.C.R.

A 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 appe11ant bad

failed in its statutory duty to check the healthy condition of trees and to

protect the deceased from the tree falling

on

rum resulting in his death.

B On appeal, the Division Bench has held that the appellant has statutory

duty tv 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

C guilty of negligence on its part in not taking care to protect the life of the

deceased. The respondent 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

D 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 J ayantilal. The Division Bench accordingly confirmed the decree of the

E trial Court. Thus this appeal by special leave.

Sbri T.U. Mehta, learned senior counsel for the Corporation, con­

tended 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

F of not taking 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 and that the occurrence had taken place for not taking

reasonable care.

In the nature of

l;he things, it is difficult for the Corpora­

tion 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 of

G a statutory duty as the case whereby 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 remiss

in its periodical treatment to the plants but was

careless in the breach

of specific legal duty of care towards the deceased

H Jayantilal. The Corporation could not foresee that a tree would fall all of

·.

..,. -

--....

RAJKOTMUNICIPAL<X>RP~. v. MANJULBEN JAYANTILAL(RAMAS\VAMY.J.) 321

a

sudden when Jayantilal was passing on the footpath. There is no A

reasonable proximity between the duty of care and the doctrine of neigh­

bourhood laid by the

House of Lords in Donoghue v.

Stevenson, (1932) AC

562. The Common Law liability on the part of a statutory Corporation is

now authoritatively settled in Mwplzy v. Bremwood District Council, (1991)

1 AC 398 over-ruling the two tier test laid down inAmts. v. Merton London B

Burough Counci4 (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

existo; towards the deceased Jayant ilal or

class of persons, i.e. pedestrians and that duty should be one which the C

Corporation owed to the plaintiff him self. Thls should be pleaded and

proved which is lacking in the present case. Knowledge of harm l,ikely to

occur to the deceased is a pre-requisite of liability which must •Jn 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 conse­

quences.

The High Court, it was argued, has also committed serious error

D

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 E

of the trees and felling of decaying trees; it lost sig ht of the fact that it is

only a discretionary duty. The legislature did not i~tcnd 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 F

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 G

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 di.<icbarge of which

is towards the public at large

and not" towar.ds 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 H

322 SUPREME COURT REPOR TS [1997) 1 S.C.R.

A process of inte rpretation, the Court would n ot readily infer creation of

-r

1t;

individual liability to a nam ed person or cause of action to an individual,

unless the Act expressly says so. While consid ering the question whether

or not civil l

iability is

imposed by a statute, the court is required to examine

a

ll the provis.ions to find out the precise purpose of the Act, sc ope and

B

content of the duty and the conse quential cause of action for o mission

thereo

f. Action for damages will not lie in the suit by an

injQ[ed person if

the damage suffered by him is not of the kind intended to be protected by

the Act. ...

c

Before issuing notice, this Court directed the appellant to de posit Rs.

5,000 towards the c ost of the respon dents to defend the action in this

Court, s

ince an important question of l aw of general importance arises in

the case. Accordingl

y, the

said sum come to be deposited. When notice

was issued, the respondents sent a letter to the Regis

try stating that apart

from the said sum of the R

s.

5,000, addition al amount that was decr eed by

D

the lower Court, should also be directed to be deposited as a condition to

defend the case and further costs.

Under those circ umstances, by order

dated August 24, 1

995 we observed that the stand taken by the respondents

was unreas

onable and not co rrect.

Slui P.S. Naras imha, who was present

on that day .in this Co urt, was requested in assist the Court as amicus curiae

E

and to receive the above sum of Rs. 5,000 towards his fee. We directed the

counsel to submit their written arguments. Accordingl y, the counsel have

su

bmitted their written arguments.

Shri Narasimh a, learned amicus c uriae

made thorough study on the subject and has gi ven valuable assistance. We

place on record our deep appreciation of

the pains taken by him. Accord-

ing to the learned counsel, the liability in to

rt which arose in Common Law

F

has been evolved by the cou rts in England but law

has not been well -,...

developed in our jurisdic tion. In Common Law, there e xisted duty of

foreseeability, :proximity, just and reasonable cause and poli

cy. Attempts

have been made to ident

ify general theory of liabil ity in tort consistent with

causation, fairness, r

eciprocity and justice, balanc ing con flicting interests

G

as we 11 as econo mic efficiency. The

t')rtious liability fa lls into one of the

three categories,

viz., (a) some i ntentional wrong doing (b) neg ligence and

(c) strict

liability. In this case, we are concerned with neg ligence on the

part of the a

ppellant- Corporation in m aintaining the trees on the road-

sides.

The princ iple evolved by the

cour tc; in England is that a r~aso nable + -

foresight of harm to persons whom it is foreseea ble or is likely to harm by

H one's carelessness is essentia l. For the plaintiff to succeed, in an action for

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JA YANTILAL (RAMASWAMY, J.) 323

...,

-<

negligence the plaintiff requires to prove that (i) the defendant is under a 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 (ui) 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.

B

Damage similarly is also confined to the enquiry of facts. Duty of care, on

the other hand, is for

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

tum made it easy to hold in subsequent cases that there should be c

liability for negligently inflicting damage in new situations not covered by

previous case law because damage was foreseeable.

If want of

outy of care

is established, there comes to exist foreseeability

of the damage and

sufficient

proxiinate relationship between the parties and it must be just

and reasonable to impose such a duty.

The legal duty to prove proximity

D ~

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 E

and adopted by the courts in India on the principles of justice, equity and

good conscience. In support thereof, he relied upon

Gujarat State Road

Transport Corporation v. Ramabhai

.Prabhatbhai, [1987) 3 SCC 234 at 238.

Appellant·Corporation owes a duty of care in .common law. The trees F

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 reco

rded by the courts

below that the appellant has com·

mitted breach of duty of care is a fmding of fac t. From the breach of the

G

duty of care, the entitlement to damages arises to the respondents due to

the death

of Jayantilal. The learned counsel also reli ed upon K Ramadas

_,. ..

Shenoy v. 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 and obligation has been

i.J:Dposed, whellter or not enforced in action for omission to perform the H

324 SUPREME COURT REPORTS [1997] 1 S.C.R.

A duty, depends upon the language used in the statute. The injury may be

caused eith er by fulfillment of the duty or omission to carry it out or by

negligence in its p erformance. In the light of the above principl es, he

submitted that though the duty

of the appellant to plant trees is

discretion­

ary nonetheless it has a statutory duty to plant the trees a nd to maintain

B · 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/damag es caused to

the respondents. The High Court, therefore, has not committed any error

C 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 whe

ther the cause of death of Jayantilal bas proximate

D relationship with the negligence giving rise to tortious liability,entailing

payment

of compensation to the respondents? The marginal note of

Sec­

tion 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,

provicles from time to time, wholly or partly for all or any of the

following matters

viz., (viii) "the planting and

maintenance of trees on

E 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

Corpora­

tion. 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

F Section 66, si.rice 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 ceo-friendly environm ent. 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, di ed

as still born. Therefore, there is no statutory law in India, unlike in

G 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 principl es evolved by the courts in

England on grounds of justice, equity and good conscien ce (vide

H Ram011bhai PrabhaJbhai's case). Common law principles of tort evolved by

·~ -·

-fl

RAJKOTMUNICIPAL CORPN. v. MANJULBE~ JAYAN11LAL(RAMASWAMY, J.) 325

the courts in England may be applied in India to the extent of suitability A

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 evoluti onary process by applying them from

case to case and in some cases the statement of law laid by Hou se of Lords, B

as guiding principles of law on tortious liability. In the formative stage of

the development of tortious liability, the Corpor~ tion being a Corporation

aggregate

of persons, could not be held liable where liability involved so me

specific

~tate of mind as was held in· Stevens v. Midland Counties Railway,

(1854) 10 Ex. 352. However, it is now well settled that a Corporation can

be held liable a nd accordingly it may be sued for wrongs involving fraud, C

malice, as well as for wrong in which intention is immaterial as was held

in BaTWick v. English Joint Stock Bank, (1867) LR 2 Ex. 259; Comford v.

Carlton Ba11k, (1900) 1 Queen's B ench 22 and Glasgow Co1poration v.

Loremer, (1911) AC 209.

ln 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, para 1, it is stated that "tortious liability

D

arises from the breach of a duty primarily ftXed by the law; ·such duty is

towards persons generally and its breach is redressable by an action for

unliquidated damages

". Duty primarily is

ftXed by law which on violation, E

fastens liability to pay damages. It is personal to the injured. Tort and

contract are distinguishable. In tort, liability is primarily ftXed by law while

in contract it is fixed by the parti es themselves. In tort, the duty is towards

the persons generally while in contract it is towards specific p erson or

persons. If the claim depends upon proof of the contract, action docs not F .

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 he might alternatively have pl eaded in contract. The

law

of tort prevents hurting one another. All torts

roosist of violation of a

ri

ght in the plaintiff. Tort law,

therefore-, is primarily evolved t o compensate G

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 punish-

ment,

admonition and deterrence found in criminal law. The purpose of

the law of tort is to adjust these losses and offer compensation f or injuries

by

one person as a result of the conduct of another.

The law could not H

326 SUPREME COURT REPORTS (1997] 1 S.C.R.

A · attempt to compensate all losses. Such an aim would oot only be over-am­

bitious put 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

B 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 Hol mes in his

"Common Law" at page 96 (1881 Edn.). The Security and stability are

gener

ally accepted as worthwhile social objects, but there is no inherent

reason

for preferring the security and stability of plaintiffs to those of

C defendants. Hence, shifting of loss is justified o nly 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

D 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

s

uch a duty must arise by operation of law and not by mere

agre~ment 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

E 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

fa·ilure 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

F of ordinary prudence would not have done. under simi Ia~ circumstances or

failure to do

what a person of ordinary prudence would have done under

s

imilar 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.

G

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

"negligencev in the context of tort liability arising in this

H case. In every case giving rise to tortious liability, tort consists of injury and

...

RAJKOTMUNICIPAL CORPN. v. MANJULBEN JAYANTILAL[RAMASWAMY, J.) 327

damage due to negligence. Claim for injury and damage may be founded A

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 B

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 as unreasonable risk of harm to

others. The breach of duty

causes damage and how much is the damage C

should be comprehended by the defendant. Remoteness is relevant and

compensation

on proof thereof

requJes 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 D

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

· E

requires detailed examination. Upon examination, they are required to

further consider whether its extension elongates the 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 F

case to case and it should not be unduly extended or confined or limited to

all situations. The attending circ'umstances require evaluation

and applica-

tion to particular set to 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 treat latent source of physical danger to the person or property of third

G

party whom he ought to reasonably foresee as likely to be affected

thereby ~

Thus the latent defect cau-;ing actual physical damage to the person or

property

gives the cause of action and then 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

H

328 SUPREME COURT REPORTS (1997] 1 S.C.R.

A to the person or property or third party whom he ought to reason~bly

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 thirdl y, a tort in itself.

B Every

case giving rise to tortiou.<; liability, consists of injury and damage

done due to negligence. Injury and damage may

be found due to breach

of contract of tort. We are concerned in this

case with the injury and

dam.age in tort. Therefore, it is necessary to dwell, in depth, on strict

liability, absolute liability or special liability. In the present case, the

omission alleged is to take care of periodical check-up of the condition of

C the trees. The degree of liability depends upon the degree of mental

element. The elements

of tort of n~ligence, .therefore,

·consist in (a) duty

of care (b) duty owed to the plaintiff and (c)-it has been carelessly

breached. Negligence does n

ot give rise to liability unless the law fastens

the duty of care

in

given circumstances. Duty is an obligation recognised

D by law to avo id conduct brought with unreasonable risk of damage to

another. The question whether duty consists in a particular situation invol­

ves determination as a question of law.

Neglig~nce would mclude both acts and omissions involving un­

reasonable risk of having done harm to another. The breach of duty must

E cause damage. How much of the damage to be compensated by the defen­

dant should be attributed to his wilful .conduct and how much to his wilful

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

du~' and whether that

....

F duty is towards plaintiff or class of persons to which the plaintiff belongs )"-

are important components in tort of negliSfnce. Negligence would, there-

fore, 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

G negligent in the performance of duty or omission thereof .. Determination of

duty of care also involves statutory action which requires detailed examina­

tion. Local authority, when it exercises its public law function, gener ally

owes no private law duty of care. Duty of care must be owed to a person :lr ·...-:

or class of persons to which the plaintiff belongs and must be to· avoid

H causing particular type of injury or damage to his person or property. The

y"

RAJKOTMUNICIPALOORPN. "-MANJULBEN JAYAN1li.AL[RAMASWAMY,J.t 329

~

Court requires to examine the scope of duty of care which the local authority A

...

-1- 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

B

negligence stand attracted. The Court is further required to consider

whether extension

of duty of care by the process of interpretation would

:r

.,

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

princ!ple of law is desirable to be

c laid down as an acid test.

While considering whether an action would lie for breach

of statutory

duty, what requires to be established, among other things, is that the harm

complained

of is of the kind contemplated by the statute, as was held in

l

Gorris v. Scott, {1874) LR 9 Ex. 125 and Kinlgollon v.

W. Cooke & Co. Ltd.,

D

(1956) WLR 527 .

..,..

~

The degree of carelessness in breach of 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

E

require evaluation and appliC3'tion to a given set of facts in the case on hand.

Defendant must

be under duty of care not to create latent source of physical

danger/damage to the person

or properly of third party whom he ought to

have reasonably foreseen

a-; likely lo be affected thereby. Those latent

defects cause physical danger to the person

or the property giving cause of

action and the defendant then is liabie to pay damage for tortious liability. F

~

It must, therefore, be the essential element to establish that there is positive

ad or duty and the defendant is under that duty. The Cou rt 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

.i

ought to have r_easonably foreseen him as likely to be affected thereby.

G

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 a prudent man have done whether

by advertancc or

... -;.

otherwise. The tort of negligence always requires some form of careless

conduct which is usually, although not necessarily, the product of inadver-

tence. Not every careless conduct which causes damage, however, will give H

330 SUPREME COURT REPORTS [1997) 1 S.C.R.

A 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 inadver­

tence. Thus negligence in this sense is a ground for liability in lorl.

B Tlie question emerges; as to when would Lhe b(each of stalutory duty

under a particular enactment

give rise to tortious liability? The

~talutory

duty gives rise to civil action. The stalutory negligence is sui generis 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 J aw or private law duty

C towards the plaintiff. The plaintiff must show that (a) the injury suffered is

within the ambit of statute; (b) statutory duty imposes a liabi lity for civil

action; (c) the statutory duty was not fulfilled; and (d) the breach of duty

has caused him injury. These esse ntials are required to be considered in

each

case. The

action for breach of statutory duty may belong to the

D category of either strict or absolute liability which is required, therefore,

to be considered in the nature of statutory duty the defendant owes to the

plaintiff; whether or nol the duty

is absolute; and the public policy

under­

lying 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

occassio

nally

the statute may make breach of duty ac:iooable per se. The

E burden, therefore, is on the plaintiff to prove on balance of probabilities

that the defendant

owes that

dul-y 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

e<:&re is owed on the defendant. If the statute

f requires certain protection on the principle of vo/enti 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

.,.,;u lie in the suit. One would often take the Act, as a whole,

to find out the object of the law and to find out whether' one bas right and

G 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 t ests in determining the intenti on of the statute is to ascertain

H whether the duty is owed primarily to the general publjc or community and

~.

...

I

(

=-.. -

RAJKOTMUNICIPAL CORPN. , .. MANJULBEN JA YANTILAL [RAMASWAMY, 1 .] 331

(

only incidentally to an i~dividual or pr'imarily to the individual or class of A

"'

~ individuals and only incidentally to the general public or the community. If

the statute aims at duty to protect a particular citizen or particular class of

1

·citizens to which the plaintiff belongs, it p1ima facie creates at the same

~

time co-relative right vested in those citizens of which plaintiff is one; he '

has remedy for enforcement, namely, the action for damages for any loss

..f B

~

occasioned due to negligence or for failure of it. But this test is not always

l

I

conclusive.

.,.

Duty may be of such paramount importance that it is owed to all the

-1

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 c

cannot be enforced if an individual sustains damages to whom the Cor-

poration owes no duty and no private interest is infringed. Breach 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

D

at large and 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 E

~ by way of private action for damages. In that situation, the legislature, while

recognising the private right vested in an injured individual, may intend

"1 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.

F

4

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

G

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

-(

tlic 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. H

~

332 SUPREME COURT REPORTS [1997) 1 S.C.R.

A Though general rule is that where a statute creates an obligation and

enforces performance

in specified manner, performance cannot be

en- -t-

forced 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

B 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 is a question

of interpretation whether the statute aims the thing

to be done in all events

C or merely that person upon whom the duty is imposed is to use due care

and diligence in the performance of duty or that if he

failc; 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 wheth

er the -liability is absolute or dependent on wrongful intent

D 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 "f

use~ 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

E per.formance 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.

F 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 oc­

casioned and was likely

to be occasioned by their exercise and the damage

for negligence

may be recovered.

T~e above 'principle has been applied

G 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

v. Youn& (1943) Appeal Cases 92. The House of Lords laid the test to

ascertain whether a duty

was owed to the plaintiff to sec whether an injury

to the plaintiff was the foreseeable result of the defendant's conduct

in

given circumstances. In Bolton &

Ors. v. Stone, (1951) Appeal Cases 850,

H the House of Lords held that the foreseeability must be of reasonable

....

+

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL /RAMASWAMY, J.) 333

possibilities. It is not necessary to show that the person who suffered A

damage should have been within the tortfeasor's contemplation as an

identified individual as

was held in

Famtquia v. Great Westem Railway,

(1947) 2 ELR 565. As long as harm to any pet:son was reasonable foresee­

able, it may not matter whether the precise chain of events leading to it

was not foreseen as was held in /11 re Polemis & Fumess withy & Co. (1921)

King's Bench 560.

B

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 C

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

statut_ory 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 D

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

negUgence 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 E

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

F

that it

attr~cts 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

iin

exercis~ of its statutory power or by giving necessary warnings. It is the G

conduct of the authority in creating the danger that attracts the duty of

care as envisaged

in Sheppard v. 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 d~ty places itself in such a position that

others may rely on it to.take care for their safety so that the authority comes H

334 SUPREME COURT REPORTS [1997] 1 S.C.R.

A 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 he or

his

interest is at risk or in danger. Reliance by others, therefore, has been

B an important element in establishing the existence of duty of care. The

liability in negligence

is based on the plaintifrs 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.

c

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

precautio~ against damage occurring to others through the acls of thjrd

D 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

discre­

tionary considerations which stand outside the policy of the statute and

operational factors. In the operational factors, though the statute creates

E 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 them has been

recognised

as a distinctive det~rminiog factor. Public authority is under a

duty of care

in relation to decisions which involve or are directed by

F 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

G avoided·the damage sustained by the plaintiff, requires to be examined.

Tlie 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

H the exercise of power or duty, the courts have evolved the relationshlp of

)r

RAJKOTMUN!CIPAL CORPN. v. MANJULBEN JA YANTILAL(RAMASWAMY, J.] 335

-proximity or neighbourhood nexus which exists between the person who A

suffered damages and wrong doer. Where there is allegation . of wrong

doing it has to

be seen whether the letter reasonably ought to have foreseen

that the carelessness on

his part, is 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 B

plaintiffs neighbour and prima facie owes towards the plaintiff a

~uty 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.

Undoub-C

tedly, a public authority is liable for the negligent acts of its servants o~

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 D

of, the discretion.

At the cost of repetition we mY 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

E

not do. The defendants might have been liable for negligence. if,

uninten­

tionally, 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 F

the defendant himself or it may be created by statute. Therefore, ordinary

principles

of

la'\V 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 G

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 resulted

from a negligent failure to act and there

may not

be greater difficulty in proving causation. But if the public

authority omitted to exercise its discretionary power, there

is greater H

336 SUPREMECOURTREPORTS [1997] 1 S.C.R.

A 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

B 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)

C 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 d epends 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

D authority in order to give effect to its presumed id ea 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 care­

fully 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

E some action whether or not in exercise of its statutory power or not to

prevent injury only if its antecedent acts, have cr eated 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 s uch

a way as to prevent injury to him unless the Act has imposed such a duty

F 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

G 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 Modem Law of Tort, London, Sweet & Maxwell (1994

H Edn.), ~.M. Stanton has discussed the breach of statutory duty, express or

i

[

l

)'-·

'""·

"" ·-,.

RAJKOT.MUNICIPALCORPN. v. M~NJULBEN JAYANTILAL[RAMASWAMY ,J.) 337

inferential.

He has stated

a:t page 42 that the statutory tort takes a number A

of different forms. A number of modern statutes ex-Pressly 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 breach 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

B

tort. A tortious remedy is obviously available if a statute says that the

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 C

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 Wilbome,

(1884) 2 Q.B.

402 is a leadi!lg authority in support of that liability. At page D

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 niust 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

.E

and the presumptions play only limited role. They will yield to competing F

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 construed

statutes

of attributing the particular meaning of form of words. It is the more difficult one of discerning the intention of the legislature on a matter G

which bas 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

Rarticular class

of persons" that if a statutory obligation or prohibition was

imposed for

the benefit of protection of a particular class of persons a H

338 SUPREME COURT REPORTS [1997) 1 S.C.R.

A presumption will arise that the tort of breach of statutory duty is to be

i 'i

inferred. This presumption is an exception to the presumption of a non-

actionability derived.frompositive act. It, therefore, only applies to a statute

which provides its own enforcement machinery.

B

Thi~ 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 presump-

tion applies to the case, it will still

be necessary for the court to review the

statute in question in

order to determine whether

tlfe prima facie refult is

c 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 alterna-

tive remedy exists to invoke the presumption

of non-actionability and in

D

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 t-

machinery and all other duties over which they had any daub~ as being

passed in the public interest, rather than as intended

to vest rights in a

E defined class of private individuals; were to regard the existence of stand-

ard common law

and administrative law remedies as raising the presump-

tion

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

.,...

F

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 st_atement given

..

by the House of Lords.

G

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 causes damage to the plaintiff. Duty

determines whether the type

of loss suffered by the plaintiff in the par-

H ticular way in which it occurred can ever be actionable. Breach of duty is

>

. -f

RAJKOTM~ICIPALCORPN. v. ~NJULBE~ JAYANTILAL(RAMASWAMY. J.l 339

concerned with the standard of care that ou~ht to have ado pted in the A

circumstances, and whether the defendant's conduct fell below that stand-

ani, i.e.; whether he was careless. The djvision of negligen.ce 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 neighbourhood 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 limit 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

te! 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.

B

c

Trus new approach r epresents a sruft of emphasise rather than a new

substanti

ve test for the existence of a duty of care. In future, rather than D

starting from a prima facie assumption that where a defendant's

careless-

ness 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 issue 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 E · for gradual development but requiring most caref ul analysis. The follo\ving

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

parti~; and

(iii) even where {i) and (ii) are satisfied it must be just an

rea'ionable to impose such a duly.

F

At page 30, he has stated relation ship of "Foreseeability and

proximity" thus : The concept of foreseeability, i.e., what a hypothetical G

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 le ad to the

conclusion that the defendant's behaviour was not careless

and even where H

340 SUPREME COURT REPORTS (1997] 1 S.C.R.

A negligence is patent, damag~ 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

B 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 to virtual impossibility, and

in deciding whether it was

C foreseeable involves a choice. There is no

ftxed point on the graph at which

the l

aw requires people to take account of a possibil ity. lt is not a

to~aliy

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 loss must be reasonably foreseeable,

D which may mean that it must be foreseeable as a possibility or probable or

more probabl e than

not or likely or very likely. This scope for ambiguity

a

llows 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, eith er by authority or

reasons of policy, to deny liability and do so by relying on an absence of

E reasonable foreseeability which attributes to the reasonable man an abnor­

mal degree <>f myopia.

The proximity

is usually used as shorthand for Lord Atkin's neigh­

bour principle. This refers

to legal not physical proximity.

Physical

F proximity may be relevant in deciding whether the parties should be treated .

as neighbours in law, but it is not an essential requirement. On the

"principle

of duty and unforeseeable plaintifr, the word 'duty'

is used in,

at ]east, three different senses. First, duty of care may signifying the

recognition of liability for careless conduct

in the abstract -is tbis type of

harm occurring

in this kind of situation ever actionable? where the courts

G 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 pol icy. Foreseeability may be

necessary but it is not a sufficient criterion of liability. Secondly, ever,

where

it is accepted that a particular type of loss is capable of giving rise

H to liabil ity in negligence, the court may conclude that the defendant did

-

-+-

;

RAJKarMUNICIPALCORPN.v. MA"lJULBE..NJAYAI\!IL\L(RAMASWAMY.J.J 341

not owe a duty of care to the particular plaintiff if the plaintiff was A

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 defen da~t fall below the

standard that a reasonable man would have undertaken, the court may ask

B

whether the defendant who was under a

duty was to take further precau­

tions? 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 remem-

ber that the concept of duty adds nothing to the tort of negligence. In C

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 circumstan-

ces 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.logicaJ equivalent of actual legal liability

for damage caused

by negligence. Thus to say that a duty of care exists is D

to

slate 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

disti!lction between the infliction of harm

through some positive action and merely allowing harm to occ

ur by

failing

to prevent it. This is the distinction between misfeasance and non­

feasance, but it is not always easy to make. In many cases an omission may E

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 Editio~) -London, Sweet & Maxwell, 1989 it is stated in F

Chapter 4, Para 2 "Duty of Care Situation" at page 429 that no action lies

in negligence unless there

is damage. In cases 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, G

however the date of damage is determined. The duty in negligence, there­

fore, is not simply a duty not to act carelessl

y; 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" 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 H

342 SUPREME COURT REPORTS [1997] 1 S.C.R.

A type of person to which the defendant belongs. It is essential in English

law

tltat

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

B 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 behaviour

by the defendant, causation of

damage and foreseeability of that kind of damage to the particular plaintiff.

C 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.

D

There is a distinction between misfeasance (positive action) and

non-feasance (omission). Misfeasance

is willful, reckless or heedless

con­

duct in commission of a positive act lawfully done but with improper

conduct. Non-feasance means non-performance of some act which ought

E to be performed or omission to perform requ~red duty or total neglect of

duty. In the case of misfeasance, the defendant

is the author of the source

of danger to cause damage due

to careless conduct, to the person/property

of plaintiff. He

h~s 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

F Edn.) 1992, at page 435 on the Chapter of 'Public Authorities', the author

has stated that altho~h public authorities enjoy no immunity as such from

ordinary tort ~bility; a protective screen bas long remained in the vestigial

"non-feasance~ rVJe that mere failure to provide a service or bencfil pur­

suant to statutory authority would ordinarily confer no private cause of

G 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) sometim~s

referred to as pure omissions, though a fundamental one, is not one which

H is easy to make. F.H. Bohlen suggested that "misfeasance dif{e~s from

~ ·

-

.,

-..,

RAJKOf MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL (RAMASWAMY, J.) 343

non-feasance in two respects : in the ~haracter of the conduct complained A

of, and second, in the nature of the detriment suffered in consequence

4

thereof". )'he first aspect relates to the distinction between active mis­

feasance ·and passive inactivity; the second to the distinction between

causing loss and simply failing to confer a benefit. A .defendant who has

inflicted a loss on the plaintiff by his negligent action will be liable for the B

misfeasance. On the other hand, if he has simply allowed harm to occur

without preven.ting it, or failed to confer a benefit

on the plaintiff, he will

not be liable, as this

is considered to be an omission or non-feasance. The

conferment of such benetits lies

in the province of contract, not tort. At

page

117, he

states that Tort l aw has developed in such a way as to allow C

the imposition of liability for injuries that are not easily described as

"damage" or "loss". At page 119, it is further stated that there are, however,

more practicle arguments

why misfeasance and non-feasance should be

treated differently. Imposing liability in cases of non-feasance, it is argued,

would

be to create liability for an indeterminate class of persons. In D

situations where a warning could have been given or a rescue

effected,

there are often a number of people who could have taken the action but

did not. There are difficulties in determining which of them should

be

liable. Moreover, it is unfair to pick out one person from a group of equally

culpable wrongdoers. When harm

is inflicted by a positive act, the

wrongdoer is readily identifiable in most cases and there is no group of E

wrongdoers from which one person has been arbitrarily selected. At page

120, it is stated that in all tort actions, one of the crucial tasks which a court

has to perform is to determine whether the injury which was suffered

by

the plaintiff was or was not reasonably foreseeable by the defendant. While

such assessment

of

ri~k may be more difficult in some cases of non-feasance

than

it is

in cases of misfeasance, it would be no different in substance. At

page 131, it is stated that the circumstances in which liability can arise for

an "omission" are therefore somewhat uncertain and open to· widely differ-

F

ing interpretations, both broad and narrow. In addition, the outcome of

cases in which an omissions is at is.c;ue may well be the same whether one G

deals with under general principles or under special rules. It may be that

by confining liability for what are conceived of as omissions to specified

circumstances, the courts have attempted to emphasise that such liability

will only arise in

a limited number of situations. But the decisions reached

by the application ·of these special rules often s eem artificial and unduly H

344 SUPREME COURT REPORTS [1997]1 S.C.R.

A restrictive and the applicati on of general principles does not necessarily

t-..

mean that liability will arise in unlimited circumstances. It would still be

necessary to ~>how that there was sufficjent proximity between the parties

and a reasonably foreseeable danger before a duty of care could arise. In

determining this question,

the court cou ld take into acco unt a broad

range

B

of facts which were relevant and even if the facts suggested that such a duty

did exist, it would still

be permissible to consider whether considerations

of policy dictate that the duty should not arise. Th us court would proceed

~

with caution in areas of doubt or difficul. ty. In the conclusion, it is stated

.J.

-=:::

at page 137 that if cases dealing with a negligent fa ilure to warn were dealt

c

with by the principles applied in ordinary n egligence actions rather than

by special rul

es which depend on whether the failure was consid ered to be

an act or an omission. At page 137, he. concJuded that the distinction

between acts or omissions was developed at a time when the law

of

negligence was in a relatively primiti ve state and it was feared that the

D

courts would be ovenvhelmed with actions alleging omissions. However,

the law of negligence is now considerably more sophisticated and

"floodgates" arguments at:e given much less credence than they used to be. ...

It can be seen that ordinarily principle of the law of negligence

applies to ·public authorities also. They are liable to damages because by a

E negligent act or failure to act when they are under a duty to act or for a

failure

to consider whether to exercise a power co nferred on

~hem with the

intention that it would be exercised if and when public interest requires it.

Where the public authority has decided to exercise a power and has done

~

it negligently a person who has acted in reliance on what the pubHc

F

authority has done, may have no difficulty in proving that the damages

which he has suffered have

been caused by the negligence. Where the

)o

damage has resulted from a negligent failure to act there may ~e greater

difficulty in

proving causation and requires examination in greater detail.

-

The liability in tort is for the damage done, not for damage merely

G

foreseeable or threatened or imminent. In Donoghue's case, the defendants

were manufacturers

of ginger-beer which they bottl ed. The pursuer had

been given one of their bottles by a friend who had purchased it from a

retailer

·who in turn had purchased it from the defendants. There was no

relationship between the

pursuer and the defendants excepting one arising

from

the fact that she consumed the ginger-b eer they had made and

l--

H bottled. The bottle was opaque, so that it was impossible to see that it

RAJKOTMUNICIPAL CORPN. "· MANJULBEN JAYANTILAL(RAMASWAMY ,J.) 345

contained the decomposed remains of a snail. It was sealed and sto ppered A

so that it could not be tampered with unlit it was opened in o rder that the

contents should

be drunk. The

House of Lords had held that these facts

e!itablished in law a duty to take c are as between the defendants· and the

pursuer.

The principle laid is

thus : "a manufacturer of pn?t!Ucts, which he

sells in such a form as to show that he intends them to reach the ultimate

consumer in the form in w~ich they left him wit)l no reasonable possibility

B

of intermediate examination, and with the knowledge that the ab!ience of

reasonable care in the preparation

or putting up of. the products will resu.lt

in an injury to the consumer's life or property, owes a duty to the consumer

c

to take that reasonable care". There must be, and is, some general con­

ception

of relations giving rise to

~ duty of care, of which the particular

cases found in the books arc but instances. The rule that you are to live

with

your neighbour becomes in l aw a duty that you must not injure your

neighbour. You must take reasonable

care to avoid by acts or omissions

which you can

reasonably

foresee would be likely to injure your neighbour.

Who, then, in law, is my neighbour? The answer seems to be persons who 0

arc so closely and directly affected by my act that I ought reaso.nably to

have them in contemplati on as being so affeclecl when I am directing my

mind· to the acts or omissions which are called in question. The defendant

must be the author of the source

of danger/damage to the person/property.

He must

of

ex~necessitate rei have knowledge of hidden defect.

In Overseens Tanks/zip (U.K.) Ltd. v. Morts Docks and Engineering

Co. Ltd., (1961) AC 3sS Viscount Simonds, speaking for the Judicial

Committee, had Jaid thus

at page 425 :

"It is, no doubt, proper when

considering tortious liability for negligence to analyse its.elements

and to

E

say that the plaintiff must prove a duty owed

t~ him by the defendant, a F

breach of that duty by the defendant, and consequent damage. But there

could be no liability until the damage has

been done. It is not the act but

the consequences on which t ortious liability

is founded for tort. It is vain

t!) isolate the liability from its context and to say that ·B is or is not liable

and then to ask for what damages he is liable.

For

his liability is in respect

of that damage and no other. If, as admittedly it is, B's liability (culpability) G

depends on the reasonable foreseeability of the consequent damage, how

is that to be determined except by the foreseeability of the damage which

in fa.

ct happened

~ the damage in suit?" The duty of care must, therefore,

be with

reference to the kind of

damage that the plaintiff has suffered and

in deference to the plaintiff or class to which the plaintiff is a member. · H

346 SUPREME COURT REPORTS r1997] 1 S.C.R.

A These cases relate to private law tort.

B

The proper approach, therefore, is to consider whether a duty of care

situation exists in public law tort which the law ought to recognise and

whether in that situation the defendant's conduct was such that he should

have foreseen the damage that would be inflicted on the plaintiff. As a

general rule of

law, one

m<;~n is under no duty to control another so as to

prevent the latter from doing damage to a third. The first question to be

considered is : whether the plaintiff has established necessary relationship

giving rise to the duty of care? The next question is whether there is any

negligenc~ at the time when the act in question was committed? The act

C complained of must have rational relationship to the damage caused. The

tort of negligence does not depend simply on the question of foreseeability.

Foreseeability

is not the sole criteria nor does the fact that the damage is

foreseeable creates any onus. What the court would ask or look at

is the

operational structure of the Act.

Is this a situation where a duty does

exist

D towards the plaintiff or class of persons to whom he belongs keeping in

mind the nature of the functions and the interest of the community. The

·further question would be : whether the damage to the plaintiff is so

foreseeable?

In that behalf it must be further seen whether there was

sufficiently proximate relationship between the plaintiff and the defendant.

E

F

In Hedley v. Baxendale, (1854) 9 Ex. 341, the celebrated judgment, the

accident can be said to have been the natural and probable result

of the

breach of duty. That principle

was accepted in Haynes v.

H01wood, (1935)

1 K.B. 146 wherein Greer, L.J. had laid lhus : "If what is relied upon as

novus actus interveniens, is the very kind of thing which is likely to happen

if the want of care which is alleged takes place, the prip.ciple embodied in

the maxim is no defence. The whole question is whether or not, to use the

words

of the leading case, Hadley v. Baxendale, (1854) 9 Ex. 341, the

accident

caJ;I be said to be the 'natural and probable result' of the breach

of duty". This principle was further approved by Hou ~e of Lords in Dorset

Yacht Co. v. Home Office, (1970) AC 1004 at 1028. The facts there were

G that seven Borstal boys were taken by the officers, in charge of the h<?stel

to an island under the control and supervision of three officers. The boys

left the island at night and boarded. cast adrift and damaged the plaintiffs'

yacht which

was moored offshore. The respondents brought action for

·

damages against the Home Office alleging negligence on the part .of the

H officers incharge. The defence was that the office~s had no control over

l

,...

,.

.>-'

RAJKOfMUNICIPALCORPN.v .MANJULBENJAYANTILALJRAMASWAMY,J .J 347

the boys.

There was no carelessness on their part and that the damage was A

..,

.;

too remote. Lord Reid while negativing the defence held that where

~

negligence is involved the Donoghue principle laid down by Lord Atkin

generally applied. Therein the question was of remoteness of causation

between the

three agencies involved, viz., the controlling officers, the boys

who caused the damage

and the plaintiff wl1o suffered the damage. The

argument of the Attorney General on behalf of the Home Office was that

B

the officers had no control over the boys.

In dealing with that question,

). Lord Reid in his speech had held at page 1027 that "there is an obvious

difference between a

case where all the links between the carelessness and

the damage are inanimate so that, looking back after the event, it can be

c

seen that the damage was in fact the i_nevitable result of the careless act or

omission and a case where one of the links is some human action. In

the

former case, the damage was in fact caused by the careless conduct,

-1

however unforeseeable it might have been at the time that anything like

that would happen. At one time the law was that unforeseeability was no

defence .... But the law now is that there is no liability unless the damage D

>

was of a kind which was foreseeable. On the other hand, if human action

(other than an instinctive reaction) is one of the links in the chain, it cannot

be said that, looking back, the damage was the inevitable result of the

careless conduct. No one in practice accepts the possible philosophic view

that everything th_at liappens was predetermined. Yet it has never been the

E

law that the intervention of human action always prevents the ultimate

da~age from being regarded as haVing been caused by the original care-

lessness. The c6nvenient phrase novus actus interveniens denotes those

cases where· such action is regarded· as breaking the chain and preventing

the_ damage ·from being ·held to be caused by the careless conduct. But

F

~ every day there are many cases where: although one of the connecting links

is deliberate human action,

the law has no difficulty in holding

that the

defendant's conduct caused the plaintiff loss. At page 1030. Lord Reid held

I

that" ..... r( would agree, but there is very good authority for the proposition

that if ~ person performs a statutory duty carelessly so that he causes

I

damage ilo a member of the public which would not have happened, it he G

had performed his duty properly he may be liable". Accordingly it was held

that Home office was liable for damages on account of negligence of the

officers .

.. ...,

. . ·.

In Geddis v. Proprietors of Ba_nn Reservoir, (1978) 3 App. Cas. 430

H

.,..

T

348 SUPREME COURT REPORTS {1997)1 S.C.R. ~

A Lord Blackburn said, at pp. 455-456.

.. '(

"For I take it, without citing cases, that it is now thoroughly

•

well established that no action will lie for doing that which the

~

legislature has authorised, if it be done without negligence, al-

B

though it does occasion damage to anyone; but an action does lie

for doing that which the legislature has authorised,

if it be done

negligently."

The reason for this we think,

is that legislature deems it to be in the

"'

public interest that things, otherwise justifiable should be done, and that

c

those who do such things with due care should be immune from liability,

to persons who may suffer thereby. But legislature cannot reasonably

be

supposed to have licensed those who do such things to act negligently in

disregard

of the interests of others so as to cause them needless damage.

Where legislature confers a discretion the position i" not the same. Then

D

there may, and almost certainly will, be error~ of judgment in exercising

such a discretion and legislature cannot

be imputed to have intended that

~

members of the public should be entitled to sue in respect of such errors.

~

But there may be case when the discretion is exercised so carelessly or

unreasonably that there bas been no real exercise of the discretion which

legislature has co?-ferred, the person purporting to exercise his discretion

E

has acted in abuse or excess of his power. Legislature cannot be supposed \-

to have granted immunity to persons who do that.

In

Bourhill v.

Young, (1943) AC 92 at 98 Lord Wright had laid that

the "obligee

in such duty must be a person or a class definitely ascertained,

and so related by the circumstances to the obliger that the obliger is bound,

F in the exercise of ordinary sense, to regard his interest and his

safetY. Only >-

the relation must be not too remote, for remoteness must be hel~ as a

general limitation of the doctrine". The learned law Lord further

elaborated that "I doubt whether in view of the variations of circumstances

which may exist

it js possible for profitable to lay down any hard and fast

G

principle beyond the test of remoteness as applied to the particular case".

In Geddis's case (supra). Lord

Hathe~ley had stated at page 449 that

"We are not bound, nor entitled, to suppose that they will willfully do injury

by the exercise of the legislative powers which have been given to them; .-. -

but it appears to me clearly and plainly that they should use every precau-

H tion, by the exercise either of their powers created by the Act of Parliament

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAY ANTILAL(RAMASWAMY , J.J 349

-;;

itself, or of their common law powers, to prevent damage and injury being A

done to others through whose property the works or operations are carried

on ..... ".

On the law of negligence of economic laws inAnns v. Merton London

Borouglt, (1978) AC 7213 Lord Wilberforce's dictum of two test theory

B

which had contributed for the development of law of negligence wa<;

elaborated and held at page 751 thus : Through the trilogy of cases in this

~ House, Donoghue v. Stevenson, (1932) AC 562, Hedley Byme & Co. Ltd. v.

Heller & Partners Ltd., (1964) AC 465 and Dorset Yacht Co. v. Home Office,

(1970) AC 1004, the position has now been reached that in order to

c

esta~lish that a duty of care arises in a particular situation, it is not

necessary to bring the facts

of

that situation within those of previous

situations

in which duty of care has been held to exist. Rather the question

has to

oe approached in two stages. First one has to ask whether, as

between the alleged wrongdoer and the person who has suffered damage,

is there a sufficient relationship of proximity or neighbourhood such that,

D

~

in lhe reasonable contemplation of the former, carelessness on his part may

be likely to cause damage to the latter -in which case a prima facie duty

of care arises. Secondly, if the first question is answered affumatively, it is

necessary to consider whether there are any considerations which ought to

negative, or to reduce or limit the scope of the duty or the class of person

E

to whom it is owed or the damages to which a breach of it may give rise".

That two stage test theories now stand overruled by a seven-member House

in Murphy v. Brentwood District Counci~ (1991) 1 AC 398. Lord Keith of

Kinkel held at page 461 stated thus· : "I observe at this point that the

two-stage test ha<> not been accepted as stating a universal applicable

'"'

principle. Reservations about it were expressed by myself in Governors of F

the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd., (1985) AC

210, 240, by Lord Brandon of Oakbrook in Leight and Sillavan Ltd. v.

Aliakmon. Shipping Co. Ltd., (1986) AC 785, 815 and by Lord Bridge of

Harwich in Cu"alt v. Northern Ireland Co-ownership Housing Association

Ltd., (1987) AC 718." In Council of the Shire of Sutherland v. Heymand,

G

(1985) 157 CLR 424 the High Court of Atistralia declined to follow Anns

and Yuen Kun Yeu v. Attomey General of Hong Kong, (1988) AC 175, 191.

Accordingly,

it was overruled by separate speeches of

the learned Law

-

~ ·

Lords. Lord Bridge of Harwich at ·page 480 held that "a second difficulty

Will·arise where the latent defect is not discovered until it causes the

sudden

and total

-collapse of the building, which occurs when the building H

350 SUPREME COURT REPORTS [1997]1 S.C.R.

A is temporarily unoccupied and causes no damage to property except to

the building itself. The building is now no longer capable of occupation

and hence cannot be a danger to health or safety. It seems a very strange

result

that the building owner

shcmld be without remedy in this situation if

he would have been able to recover from the local authority the full cost

B of repairing the building if only the defect had been discovered before the

building fell down."

, In Coparo Industries Plc. v. Dickman & Ors., (~990) 2 AC 605 at 632

where

the facts were that plaintiff which was a public limited company and

had accomplished the take over of

FPCC. It brought an action against its

C Directors alleging fraudulent misrepresentation against its auditors claim·

ing that they were negligent in carrying

out audit and in making the report

which they were required to do within the terms of Sections 236 and 237

of the Companies Act. The plaintiff company relied upon the audit report

and _suffered loss. In that behalf, it

wa<; held by Lord Oliver of Aylmerton

D that 'The question is, 1 think, one of some importance when one comes to

consider the existence of that essential relationship between the appellants

and the respondent to which, in any discussion of the ingredients of the

tort of negligent, there is accorded the description·"proximity'' for it is now

clear from a series

of decisions

in this House that, at least so far as

concerns the law of the United Kingdom, the duty of care in tort depends

E not solely upon the existence of the essential ingredient of the foreseeability

of damage to the plaintiff but upon its coincidence with a further ingredient

to which has been attached tbe label "proximity" and which was described

by 1;-ord Atkin in the course of his speech in Donoghue v. Stevenson, (1932)

AC 562, 581 as : "such close and direct relations that the act complained

F of directly affects a person whom the person alleged to be bound to take

care would know would be directly affected by his careless act." At page

633, it was further stated that" ..... the postulate of a simple duty to avoid

any harm that

is, with hindsight, reasonably capable of being foreseen

becomes untenable

without the imposition of some intelligible limits to

keep the law of negligence within the bounds of common sense

and

G practicality. Those limits have bee~ found by the requirement of what bas

been called a "relationship of proximity'' between plaintiff and defendant

and by the imposition of a further reqUcirement that the attachment of

liability for harm whiCh bas occurred be "just and reasonable". But although

the cases in which the courts have imposed or withheld liability are capable

H of an approximate categorisation, one looks in vain for some common

~·

--

RAJKOT MUNICIPAL CORPN. v. MANJIJLBEN JA YANTILAL [RAMASWAMY, J.] 351

::> denominator by which the existence of the essential relationship can be A

tested. Indeed it is difficult to resist a conclusion that what have been

trea:ted as three separate requirements are, at least in most cases, in fact

merely facets

of same thing, for in some cases the degree of foreseeability

;.

\.

-

is such that it is from that alone that the requisite proximity can be

deduced, whilst

in others the absence of that essential relationship can most

rationally be attributed simply

to the courts view that it wouLd not be fair

and reasonable to hold the defendant responsible.

"Proximity" is, no doubt,

a convenient expression so long as it is realised that it is no more than a

label which embraces not a definable concept but merely a description of

circumstances from which, pragmatically, the courts conclude that a duty

of care exists."

B

c

In Hill v. Chief Constable of West Yorkshire, (1989) 1 AC 191, the

plaintiffs 20 year old daughter was attacked at night in a city street of the

police area of which the defendant's was chief constable and died from her

injuries. Her attacker who was convicted of her murder was alleged to have D

committed series of offences of murder and attempted murder against

yo!-lllg women in the area. Action was laid by the appellant·mother claiming

damages for the negligence

in apprehending the accused and for the faulty

investigation.

The trial Court quashed the action on the ground of Jack of

· cause of action and in appel!-1 it was confirmed. Lord Keith of Kinkel

speaking for

the House, had held that "where an individual member of the E

police force in the course of carrying out their .functions of controlling

~nd

keeping down the inci~ence of crime owed a duty of care to individual

members of

the public who may suffer injury of person or property through

the activities

of criminals such as to result in liability for damages on the

ground of negligence to anyone who suffers such injury by reason of the F

breach of that duty. Having posed that question, the House held that the

general

sense of public duty which motivates police forces is unlikely to be

appreciably reinforced by the imposition of such liability so far as concerns

their function in the investigation and suppression of crime. From time to

time they make mistakes in the exercise of that function, but it is not to be G

doubted that they apply their best endeavors to the performance of it. ln

some instances, the imposition of liability. may lead to the exercise of a

function being carried

on in a detrimentally defensive frame of mind. The

possibility of this happening in relation to the investigative operations of

the police, cannot be excluded. Further it would be reasonable to

expect

that if potential liability were to be imposed it would be not uncommon for H

352 SUPREME COURT REPORTS [1997) 1 S.C.R.

A actions to be raised against police forces on the ground that they had f~ed

to catch some criminal as soon as they might have done, with the result

that

he went on to commit further crimes. While some such actions might

involve allegations

of a simple and straightforward

type of failure -for

example that a police officer negligently tripped and fell while pursuing a

B burglar -others would be likely to enter deeply into the general nature of

a police investigation, .as indeed the present action would seek to

do."

. Smitlt & Ors. v. Littlewoods Organisation Ltf)., (1987) AC 241 is a case

of omission in a private law tort relating to economic laws. The defendants

purchased a cinema building with the intention

of demolishing it and

C . replacing by a super-market.

The cinema after doing some work remained.

neglected and unattended. Security of the building was from time to time

overcome by children and young persons and vandalism took place in

and

around it including an attempt to set fire to some old films in an adjoining

close and an attempt to light a fire in the cinema itself.

On July 5, 1976, a

D fire was deliberately started in the cinema by children or teenagers, as a

result

of which the cinema burned down and an ad jacent cafe and billiard

saloon and a nearby church belonging to the users were seriously damaged.

An action was brought against the defendants for damages claiming that

the damages to the

property was caused due to defendants' negligence in

not driving off the children causing the damage. The House rejecting the

E claim, speaking through Lord Brandon of

Oakbrook had held that there

should

be "careless breach of duty'' and that "I am of opinion that the

occurrence

of the behaviour in question was not reasonably foreseeable by

Littlewoods. I conclude, therefore, that the general duty

of care owed by

Littlewoods to the appellants did not encompass the specific duty referred

F to above". Lord Griffiths, while concurring at page 251 in his speech held

that "common-sense view should be taken". Lord Mackay

of Casbfern,

approving

Lord Macmillan's speech in Bourhil/ v.

Younb'. (1943) AC 92104

quoted at page 260 that "the duty to take care is the duty to avoid doing

or omitting to do anything the doing or omitting to do which may have as

G its reasonable an..! probable injury to others, and the duty is owed to those

to whom injury may reasonably and probably

be anticipated if the

duty is

not observed". As to the negligence, approving Lord Romer, the learned

Jaw-Lord, held that "

In my

opinion, the appellants can only be fixed with

liability

if it can be shown that there materialised a risk that ought to have

been within the appellants' reasonable contemplation". At page 272, it was

H further stated that ''we are therefore thrown back to the

duty of care. But

RAJKOTMUNICIPALCORPN. "· MANJULBEN JAYANTILALIRAMASWAMY ,J.J 353

one thing is clear, and that is that liability in negligent for harm caused by A

the deliberate wrong doing of others cannot be founded simply upon

foreseeability that the pursuer will suffer loss or dam age by reason of such

wrongdoing. 'f;here is no such general principle. We have, therefore, to

identify the circumstances in which such liability may be imposed". ''There

was no evidence that Littlewoods (the defenders) knew of these matters" B

(i.e. of the various intrusions by vandals preceding the one when the fire

was started). "Ullless they had a duty to inspect there is no basis on which

it can be alleged that they ought to have known of them." It was further

observed that " .... the question whether, in all the circumstances described

in the evidence, a reasonable pers on in the position of Littlewoods was

bound to anticipate as probable, if he to~k no action to keep these premises C

lockfast, that, in a comparatively short time before the premises were

demol

ished, they would be set on fire with consequent risk to the neigh­

bouring properties

is a matter for the judge of fact to determine." At page

279, it was concluded thus : '1 wish to emphasise that I do not think that

the problem

in these cases can be solved simply through the mechanism of D ·

foreseeability. When a duty is cast upon a per son to take precautions

against the wrongdoing

of third p_arties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does n ot

have to be very great before liability is imposed. I· do not myself subscribe

to the opinion that

liability for the wrongdoing of others is limited because

of the unpredictability of human conduct". The standard of

sctUtiny by E

courts and applications of the negligence, proximity and re moteness would

be

much more rigorously examined in public

lay.' tortious liability.

In London Passenger Transport Board v: Upson & Am:, (1949) AC

~ 155 at 168, Lord Wright in his speech had stated that a claim for damages F

for breach of statutory duty intended to protect a person in the position of

a particular plaintiff is a specific common law right whkh is not to be

confused in essence with a claim for negligence. The statutory right has its

origin

in the statute, but the particu lar remedy of an action for damages is given by a common law in order to make effective, for the benefit of insured

plaintiff,

his right to the performan ce by the defendant of the

dcfendant's· G

statutory duty. It is an effective sanction. It is not a claim in negligence in

the strict or ordinary sense. lt is a common law action based on the purpose

• .._ of the statute.

In Scovin v. Wzse (Norfolk CounO' Counci4 17lird Party), (1994) 3 All H

'

354 SUPREME COURT REPORTS [1997}1 S.C.R.

A ER 467 the Court of Appeal was to consider the duty of highway authority

to remove the obstruction

of visibility and to cut the trees. The plaintiff was

injured when his motor-cycle collided with a car driven by the defendant

who was turning out of a side road. The defendant's visibility was limited

at about

1.00 feet because a bank on adjacent railway land obstructed her

B view of the corner. The highway authority had been issued notice on earlier

occasion to have it removed but it failed to effect

it.

Under the Highways

Act, 1980, action was laid for damages against the highway authority. It was

held by Court

of Appeal that the statutory duty under Section 41 of

1980

Act did not extend to carry out work on land not forming part. of the

highway and highway authority was not held liable for the damages.

It was

C held that the plaintiff was not depending upon the exercise of the

pc wer

that had caused damage.

The

~xistence of that power is merely one of the

circumstances which enabled the defendant to claim that the ·highway

authority came under the duty of care.

D In Bwto11 v. West Suffolk County Council, (1960) 2 .. WLR 745, a

highway authority carried out certain drainage work on a road to improve

its conditions since it was inadequate to prevent flooding when the road

was

subjected to heavy :ain. It was the practice uf the roadman to put red

flags by day and red lights by night whenever there was flooding which

could be dangerous to vehicles. In December 1954, a(ter heavy rain .

and

E flooding, after the water had subsided, a patch of ice formed on that part

of the road which tended to keep damp because of inadequate drainage.

The red flags

and red lights were put off by the roa:dman when the water

had subsided. The plaintiff was driving his car. along the road when it

ran

on to the patch of ice causing it to skid

and crash into a tree. The plaintiff

F was injured and the car was damaged. In an action for damages though the

trial Court granted the decree, on appeal, it was held that failure to provide

adequate drainage by not doing sufficient work was an act

of non-feasance

for which' the highway authority was not liable,

but if the work was done

negligently and created a new danger, the Corporation was liable.

It was

held that there was

no duty on the defendant to warn

the plaintiff of the

G danger of ice being on the road, and, therefore, the claim of the plaintiff

for damages failed. The principle laid down in

Sheppard v. Mayor, Alder­men and Burgesses of the Borough of Glossop, (1921) 3 King's Bench 132

was approved and applied .

•

H In Sheppard's case (supra), a street was vested in an urban authority

.. ~

:.. ..

,

..

RAJKOTMUNICIPALCORPN .v~MAi'~ IJULBENJAYANnLAL[RAMASWAMY.J.) 355

under the Public Authorities Act,· 1875. On December 25, 1918 at 11.30 A

p.m., the plaintiff was going home by the street missed his way, without

negligence strayed on to the private land, and fell over the retaining wan·

into the street and was injured. In an action against the authority for

negligence in

the performance of an alleged duty to light the street suffi­

ciently under Section 161

of the

Public Health Act, 1875, it was held that B

the authority have a discretion and the Act imposes them no obligation to

light the streets in their districts. Consequently, the defendant who had

begun were not bound to continue to light the street and that having done

upto 9 p.m~, they have done nothing to make the street dangerous. They

were under no obligation whether by lighting

or otherwise to give warning C

of the danger. It was, therefore, held that the defendants were not liable,

for damages. In

Bolton's case (supra), a cricket ground was enclosed on

the side by the seven feet fence. When the play was on in the c ricket ground

abutting

the highway, a person being on a side road or residential house

was passing that

way. The ball hit by a player of the cric ket ground we nt D

upto

70 yards from the fence and 100 yards from the pace where injury

occur~ed. In a suit for damages, the House of Lords held that the club was

not liable

io damages

to the injured person, whether on the ground of

negligence or nuisance. Lord Port er at page 858 had held that undoubtedly,

one would know that bitting

of a cricket ball out of the ground was an event E

which might occur and, therefore, there was a conceivable'possibility that

someone would

be hit by it. But so extreme

an obligation of care cannot be

imposed in all cases. If it were no one could safe ly drive a motor car since

the possibility of an accident could not be overlooked and if it occurred

some stranger might well be injured, however careful the driver might be.

Dictum of Lord Thankerton in Bourhill's case, namely, "sucb reasonable

care as will "avoid the risk of injury to such person as he can reasonably

foresee might

be injured by failure to exercise such reasonable

care" was

applied

and held that in the circumstances it would not possible to foresee

F

the injury to the person passing

~n the highway. Lord Porter had held that

it is not enough that

the event should be such as can reasonably be G

foreseen. The further result that injury is likely to follow

must also be such

as a reasonable man would contemplate, before he can be convicted

of

actionable negligence. Nor is the remote

pos~ibility of injury occurring

enough; there must

be sufficient probability to lead a reasonable man to

anticipate it. The

existence of some risk is an ordinary incident of life, even H

356 SUPREME COURT REPORTS [1997) 1 S.C.R.

A when all due care has been, as it mu st be, taken. Lo rd Normand held at

page 860 that it is not the law that precautions must be taken against every

peril that can

be foreseen by the timorous. The standard of care is that a

person is bound to foresee only the reasonable and probable consequences

of the failure to take care judged by the standard of the ordinary

B reasonable man. Jt is, therefore, not enough f or the

plai!ltiff to say that the

occupiers

of the cricket ground could have foreseen the possibility that a

ball might

be hit

out of the ground by a batsman and might injure people

on the road, she must go further

and say that th ey ought, as reasonable

men, to have foreseen the probability

of such an occurre nce. Lord Reid at

C page 865 has he ld that the definition of negligence laid by Alderson B. in

Blyth v. Birmingham Watenvorks Co., (1856) 11 Ex. 781 at 784 that

"Negligence is the omission to do som

ething which a reasonable man,

guided upon tho

se conside rations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a prudent and

D reasonable

m~ would not do". "I think that reasonable m en do in fact take

into account the degree of risk

and do not act on bare possibility as they

would if the

rl.sk were more substanti al. Lord Macmillan's dictum in

Bourhill's case (supra) that " The duty to take care is the duty to avoid doing

or omitting to do anything the doing or omitting to do which may have as

its reasonable

and probable consequence injury to others, and the duty is

E owed to those to whom injury may reasonably and probably be

anticipated,

if the duty is not observed". It was held th at the Court mu st be careful to

place it

self in the position of the person charged with the duty and to

consider what he

or she should have reasonably anticipated as a natural

and probable consequence of neglect, and not to give undue weight to the

F fact that a distressing accident has happened. The learned law Lord also

approved the dictum

of Lord Dunedin Fordon v.

Harcowt-Rcvington,

(1932) 146 L.T. 391 at 392 that "there is such an extremely unlikely extent

that l do not think any reasonable man could be convicted of negligence if

he did not take into account the possibility of such an occ urrence and

G provide ag~l it":At page 867, it was furthe r he ld that "what a man must

not

do and

what, I think, a careful man tries not to do is to create a risk

which is substantial. Of course, there are numerous cases where special

circumstances require

that a higher standard shall be observed and where

that is recognised by the l

aw. But I do not think that his case comes within

H any such special category, It was argued that this case com es

within the

~ ·

.RAJKOTMUNICIPAL CORPN: v. MANJULBEN JAYANTILAL [RAMASW A.).!Y, J.) 357

principle

in Rylands v. Fletcher, (1869) LR 3 HL 330, but I

agree with your A

. Lordship that there is no substance in this argument. In my judgment, the

test to be applied her~ is whether the risk of damage to a person on the

road was so small that a reasonable man

in the position of the appellant,

considering

the matter from the point of view of safety, would have thought

it right Lo

refra!n from taking steps to prevent the danger." It was accord- B

ingly held that the cricket Board was nol liable for damages.

In Baxter v. Stockton-on-tees Corporation, (1959) 1 Queen's Bench

Division 441,

the plaintiff's husband was killed when a motor-cycle which

he was riding

at night on a highway collided with the kerb of an approach

island adjacent

to a roundabout. In a suit

far damages for the death of her C

husband against the statutory highway authority for its failure to provide

lighting at

the approach road, Court of Appeal held that on the assumption

that

the defendants were

in any way at fault in respect of the approach

island that fault consisted exclusively

of non-feasance and that accordingly

if the defendants were to

do held

liable-it could only be by virtue of some D

express words in the Act under which the road became vested in them. But

nothing was found

in Section 32 .of the Local Government

Act, 1929 to

impose on an urban authority taking over a county road any special

obligation

as to the maintenance of the road so as to exclude the ordinary

immunity from civil action

in respect of mere non-feasance. Therefore, the

action of the plaintiff must necessarily fail. In Wilson v.

Kingston

4Upon-E

Thames Corporation, (1949) 1 ELR 679, a hole in an asphalt roadway was

temporarily

repaired by the highway authority by filling. it with

tar·

macadam. The road again became in need of repair, but it was not done.

A cyclist riding over the hole was thrown from his cycle and injured. He

laid the suit for damages, it was held by Court of Appeal that the condition F

of the road was due to non-feasance and not due to misfeasance in

repairing the road negligently and, therefore, the highway authority was not

liable for damages.

Let us consider the cases relating to duty of care in planting and G

maintenance of the trees. In England, every owner of the house or the

Corporation, has statutory duty to plant trees and oftheir upkeep. In that

behalf

the case law is

as under :

In Noble v. Harrison, (1926} 2 King's. Bench Division 332, a branch

of a beech tree growing on the defendant's land overhung at a height of 30 H

358 SUPREME COURT REPORTS [1997] 1 S.C.R.

A feet above the ground. In fine weather the branch s uddenly broke, fe ll upon

the plaintiffs vehicle, and damaged it. In an action by the plaintiff claiming

in respect of damage to his vehicle, the county court found that neither the

defendant nor his servants knew that the branch was dangerous on that the

fnicture was 'due to a latent defect not discoverable by any reasonably

B careful inspection. Reversing the judgment of the country court, it was held

that

the Ryland's case, principle had no application inasmuch as a tree was

not

in itself

·a dangerous thing and to grow trees was one of the natural

uses

of the soil. Mere fact that the branch overhung the tree passage of the

highway and although the branch proved to be a danger the defendant was

C not liable, inasmuch as he had not created the danger and had no

knowledge, actual

or imputed, of its existence. The principle laid do wn in

Barket v. Herbert, (1911) 2 K.B. 633 was applied. At page 338, Rowlatt J.

held that I see no ground for holding that the owner is to become an insurer

of nature, or

~hat default is to be imputed to him until it appears, or would

D appear upon proper inspection, that nature can no longer be reli ed upon.

In Cunliffe v. Bankes, (1945) 1 All E.L.R. 459, a. tree growing on the

defendant's estate fell, owing to its diseased condition, across a highway

running besides the estate.

The

plaintiffs husband was riding a motor-cycle

along

the highway when without any negligen ce on his part, he collided

with

the tree and died of his injuries. The plaintifrs action based on

E negligence was brought under the Fatal Accidents Act, 1846 and the Law

Reform (Miscellaneous

Provisions) Act, 1934. The trial Judge found the

defendant liable. On appeal, reversing the judgment, the court of Appeal,

House of Lords held that a person is not liable for nui sance constituted by

tlie state of his property· unless {a) he caused it or by the neglect of some

F duty he allows it to arise or when it has arisen without his own act or

default, he omits to remedy "it within a reasonable time after he be came or

ought to have become aware of it. Therefore, the defendant was not liable.

In Gaminer & Anr. v. Northem & London !rtvestment TnJ.St, Ltd., (1950) 2

.

ALL ELR 486, the respondents we re lessees of a block of flats in London

G street which they were occupied by the tenants. In the forecourt of the flats,

there was a row of

e)gt trees. On April 7, 1947, the appellants were driving

past

the flats when one of the trees

feU on their car, wrecking it and injuring

the appellants. The tree that was fallen was proved to have been due to a

dise as~ of the roots, which was of long standing but the disease had not

H taken a normal course and there was no mdication from the condition of

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JA YAN11LAL (RAMASWAMY, J.) 359

the tree above ground that it was affected by the disease. The tree was A

about 130 years old and according to the evidence it was of the middle age.

It was never lopped, topped or pollarded. The action was laid for damages

for omission to take proper care of the trees.

The House of Lords, after a

detailed examination of the evidence, held that when there

was no evidence

that the tree was affected with

a disease mere possibility of the taking B

protection was not sufficient as spoken by the expert

w,itnesses. It was,

therefore, held that the respondents were not liable for damages. Lord

Normand at page

494 held that what would a reasonable and prudent

landlord have done about the tree? There is more than enough evidence

of what scientific experts would have thought

or done, but there is a paucity C

of evidence about what a reasonable and prudent landlord would have

done.

It was held that there was no evidence to conclude that a reasonable

prudent landlord would inspect or cause

to be inspected any good sized

tree growing in a place where unsuspecting person

may lawfully approach

it and to take any protection since there

~ no external evidence of any

injury. Lord Radcliffe

at page

501 had held that the accepted test that D

liability only begins when. there is apparent in the tree a sign of danger has

the advantage that it seems to ignore,

or to a large extent to ignore, the disdnction belWeen the spot that is much and the SJX?t that it little fre­

quented but, on the. other hand,

I think that it does end by making the

standard

of the expert tl:ie test of liability. Even anyone can own a tree, E

there is no qualifying examination, but to how many people in this country

can be credited as much as general knowledge as will warn them that a

tree's top is unusually. large, or that it

is, in fact, diseased,

dangerously or

otherwise?"

It would thus

be seen that each case requires to be examined in the

light of the special

Circumstances, viz. whether the defendant owed a duty

of care to

the plaintiff whether the plaintiff is a person or a class of persons

F

to whom the defendant owed a duty of

care, whether the defendant was

negligent in performing that duty or omitted

to take such reasonable care G

in the performance of the duty, whether damage must have resulted from

that particular

duty of care which the defendant owed to the particular

plaintiff or class

of persons. Public

authorities discharge public obligations

to the public at large. Therefore, it owes duty of care at common law to

avoid causing present or imminent danger to the safety of the plaintiff or

a class

of persons to whom the plaintiff belongs. It is a statutory duty of H

360 SuPREME COURT REPORTS [1997] 1 S.C.R.

A care under common law which could give rise to actionable claim in the

suit

of the individual and it is capable of co-existence along side a statutory

duty. The duty

of care imposed on a local authority by law may not be put

beyond what the statute expects of the local authority or Corporation to

perform the duty. The tort of insuperable negligence would emerge from

B imminent danger created by positive act. But the duty of care imposed on

local authority

by law my be gauged from the circumstances in which and

the conditions subject to which the duty of care has been imposed

on the

statutory authority. The imminent danger theory must

be viewed keeping

at the back

of mind the act or conduct creating the danger to the plaintiff

or the class of persons to which he

be~ongs and that by negligent conduct

C the defendant causes damage to the property or person of the plaintiff,

though the defendant

is not in know of the danger. The defendant also in

given circumstances, must owe special responsibility or proximity imposing

foreseeable duty to care, to safeguard the plaintiff from the danger or to

prevent it from happening.

D

·E

But when the defendant was not in know of the discoverable defect

or danger and it caused the damage by accident like sudden fall of the tree,

it would

be difficult to visualise that the defendant had knowledge of the

danger and he omitted to perform the duty or care

to prevent its fault.

There would

be no special relationship between the statutory authority and

the plaintiff

who is a

re~n:ote .uscr of the foot-path or the street by the side

of which the trees were planted, unless the defendant is aware of the

condition

of the tree that it is likely to fall on the footpath on which the

plaintiff/class of persons

to which he belong frequents it. The defendant by

his non feasance

is not responsible for the accident or cause of the death

F since admittedly there was no visible sign that the tree was affected by

disease. It had fallen in a still condition of weather .

..

Therefore, there must exist some proximity of relationship,

foreseeability of danger and duty

of care to be performed by the defendant

to avoid

the accident or to prevent danger to person of the deceased

G Jayantilal. The requisite degree of proximity requires to be established by

the plaintiff.

in the circumstances in which the plaintiff was injured. The

plaintiff would not succeed by establishing that the accident bad occurred

due

to· negligence, i.e., the defendant's failure to take reasonable care as

ordinary prudent man, under the circumstances, would have taken

and the

H liability in tort to pay damages bad arisen. If the defendant had become

RAJKOTMUNICIPAL CORPN. v. MANJULBeN JA YANTILAL(RAMASWAMY , 1.1 361

aware of the decayed condition or that the tree was affected by disease and A

)

taken no action to prevent the accident, it would be actionable, though for

')

non-feasance. Mere appearance of danger gives rise to no liability. Actual

damage had occurred before tortious liability for negligence arose. When

the defendant is under statutory duty to take care not to create latent

source of physical danger to the property

or the person who in the

B

circumstances is considered to be reasonable foreseeable as likely to be

affected thereby, the defendant would

be liable for tort of negligence. If

;.. , the latent defect causes actual physical damages to the person, the defen-

dant

is liable to damages for tortious liability. The negligent act or omission

of the statutory authority must

be examined with reference to the statutory

provisions, creating the duty and the resultant consequences:

The

negligent c

act or omission must be specifically directed to safeguard the public or

some sections of the public to which the plaintiff was a member, from the

particular danger which has resulted.

The exercise of power/omission must have been such that duty of

D

care had arisen to avoid danger. Foreseeability of the danger or injury

)

alone is not sufficient to conclude that duty of care exists. The fact that

one could foresee that a failure

of the authority to exercise a reasonable :f care would cause loss to the passers-by itself does not mean that such a

duty of care should. be imposed on the statutory authority. The statutory

authority exercises its public law duty

or function. It would be wrong to E

think that the local authority always owes responsibility and continues to

have the same state

of affairs. It would be an intolerable burden

of duty of

care on the authority; otherwise it would detract the authority from per-

forming its normal duties.

It he were to gauge the risk of litigation, he

..

would avoid doing public duty of planting and nurturing the trees thinking

F

--'

that it would be a heavy burden on the local authority. It would always

cause heavy financial burden on the statutory authority.

If the duty of

maintaining constant vigil or verifying or testing the healthy condition of

trees at public places with so

many other functions to be performed were

cast on it, the effect would

be that the authority would .omit to perform

G statutory duty. Duty of care, therefore,

must be carefully examined and the

foreseeability of damage or danger to the person

or property must be

co-related to the

puWc duty of care to infer that the omission/non-feasance

..

gives rise to actionable claim for damages against the defendant.

It is seen that when a person-uses a road or highway, und~r common H

362 SUPREME COURT REPORTS [1997Jl S.C.R.

A law one has a right to passage over the public

way. When the defendant

creates by positive action any danger and

no signal or warnings

are given'/

. and consequently damage is done, the proximate relationship gets estah'(

lished between the plaintiff and the defendant and the causation is not too

remote. Equally, when

the defendant omits to perform a particular duty

B enjoined by

t~e statute or does that duty carelessly, there is proximity

between the plaintiff-injured

person and the defendant in performance of

the duty and when injury occurs or damage is suffered to _person or

property, cause of action arises to enable the plaintiff to claim damages

from

the defendant. But when the causation is too remote, it is difficult to

anticipate with any reasonable certainty as ordinary reasonable prudent

C man, to foresee damage or injury to the plaintiff due to causation or

omission on the part of the defendant in the performance or negligence in

the performance of the duty.

The question, therefore, is : whether the respondents in the present

D case have established the three essential ingredients? Statute enjoins a

power to plant trees on the roadsides or in public places. There

is no

statutory sanction for negligence in that behalf:· But the question is :

whether

the statutory function to plant trees gives rise to

duty· of maintain­

ing

the trees? In a developing society it is but obligatory

on every

householder, when he constructs house and equally for a public authority

E to plant trees'and properly nurture them up in a healthy· condition so as

to protect and maintain the eco-friendly environment. But the question is:

whether

the public authority owes a statutory duty towards that class of

persons who frequent and pass and repass on the public highway or road

or the public places? If the local authority/.~tatutory body has neglected to

F perform the duty of maintaining

trees in a healthy condition and when

damage, due to fall

of the tree occurs, the question emerges whether the

neighbour relationship and proximity of the causation and negligence and

the duty for care towards the plaintiff have been satisfactorily proved to

have existed so as to fasten the defendant with

the liability due to tort of

G negligence. It depends on a variety of facts and circumstances. It is difficult

to lay down any set standardsl'or proof thereof. Take for instance, where

a hanging branch

of a tree/tree is gradually falling on the ground. The

statutory/local autho-rity fails to take timely

action· to have it cut and

removed and one o_f the passers-by dies when the branch/tree falls on him.

Though

the injured or the deceased has contributed to the negligence for

H the injury or death, the local authority etc. is.

equally liable for its

~-

·...,..

,

RA.I.KOTMUNTC1PALCORPN.v.MANJULBENJAYA"NTILALIRAMASWAMY,J .) 363

negligence/omission in the performance of the duty because the proximity A

)

is anticipated. Suppose a boy not suspec ~ng the d<l{lger climbs or reaches

the falling tree and gets hurt, the defendant would be liable for to

rt of

neg

ligent. The defect is apparen t. Negligence is obvious, proximity and

neighbourhood an ticipated and lack of duty of care stands established. The

plaintiff,

in coMmon law action, is entitled to sue for to rt of negligence.

B

The authority

wi!J be liable to pay the damages for o mission or negligence

in the performance of the

duty. Take another instance, where

while 'A' is

passing on

the road, there is sudden lightning and thund er and 'A' takes

~,

'

shelter und er a tree and the lightning falls on the tree and consequently

'

A' dies. In this illustration, there is no corresponding ob ligation or a duty

of care on the part

of the Corporation or the statutory authority to warn c.

that 'A'

should not take shelter under the tree to avoid harm to him. Take

yet another instance, where road is being laid and there is no warning or

signal and a cyclist or a motor cyclist during night falls in the ditch, i.e.

place

of repair due to negligence on the part of the defendant. The injury

is caused to the victim/vehicle. The plaintiff

is entitled to lay suit for tort

D

of negligence. But in a situation like the present one where the victim

~

being not aware of the disease/decay, the tree suddenly fal ls in . a still

weather condition, no one can anticipate and

it is difficult to foresee that

a tree would

fall suddenly and thereby a person who would be passing by

on the road-side, would suffer injury or would die in consequence. The

E Corporation or the authority is not liable to be sued for tort of negligence

s

ince the causation is too remote. Novus actus inconveniens snaps the link

and, therefore, it is difficult to establish lack of care resulting in damage

and foreseeabil

ity of the damage. The case in hand fa lls in this category.

Jayantilal

was admittedly passing on

the roadside to allend to his office

dut

y. The tree suddenly fell and he sustained injury and consequently died.

F .......

It was difficult to foresee th at a tree would fall on him .

The conditions in India have not developed to' such an extent that a

Corporation can keep constant

vigil by testing the healthy condition of the

trees

in the public places, road-side, highway frequented by passers-by.

G

There is no duty to maintain regular supe rvision thereof, though the local

authority/other auth

ority/owner of a property is under a duty to plant and

maintain the tree. The causation. for accident is too remote. Consequentl

y,

there would be no Common Law right to file

Sl'it for tort of negligence. It

... ..... would not be just and proper to fasten duty of care and liability for

'

omission th ereo( It would be difficult for the local authority etc. to foresee H

..

I

~

'"'

'

364 SUPREME COURT REPORTS [1997) 1 S.C.R.

A such an occurrence. Under these circumstances, it would be difficult to

conclude that the appellant

has been negligent in the mainteJ1ance of the

1..

trees planted by it on the road-sides.

The appeal, therefore, succeeds a nd is allowed accordingly. Judg­

ment ~d decree of the trial Court, as affirmed by the High Court, sta nds

B set aside. In the facts of the case, we direct that the amount of Rs. 45,000

may not be recovered from the respondents t hough t~ey arc not entitled

in Jaw to the same, since they are too poor and the amount must have

already been spent

out. In view of the trouble taken by

Shri Narasimha as

amicus·cwiae, we direct the Corporation to pay him a further sum of Rs.

C 5,000 (Rupees five thousand only) within a period of two months from the

receipt of this order.

v.s.s. Appeal allowed.

I

J=