PUBLIC LAW/TORT LAW AND LIABILITY

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Recent Developments in the Law Relating to Negligence by a Public Authority*
by Ashish Chugh**

Cite as : (2002) 7 SCC (Jour) 25

In India, public authorities play a pivotal role in the spheres of social, economic and political development. In the modern age, such authorities have manifold activities, which touch several aspects of a citizen's life. The inevitable question then arises, how do we ensure that a public authority will act responsibly? It is argued that since most public authorities would normally fall under Article 12 of the Constitution of India, their actions can be scrutinized under public law.

However, public law remedies can prove quite inadequate as a writ of mandamus can at the most, require future considerations of the exercise of power. But what about an action in private law to look back at what the public authority ought to have done? Upon what principles can one say that a public authority not only had a duty in public law to consider the exercise of the power, but that it would also have a duty in private law to act, giving rise to a claim in compensation? This article will try to analyse adequate solutions to such questions in the light of recent radical developments in the common law relating to the tort of negligence.

Indian view on negligence

The Indian law of torts, in general, and the law relating to negligence in specific, is mostly based on the English common law as approved and adopted by the courts in India on the principles of justice, equity and good conscience. The Supreme Court in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum1 held that it could be deduced that the Indian judiciary has expressly accepted the common law principles of torts as evolved by the courts in England. One has to keep in mind the extent of the suitability and applicability of such principles of law of torts to Indian conditions. It is therefore, necessary to consider and evolve our principles in tune with the English jurisprudence on liability in tort. It was observed by Justice Ramaswamy in the abovementioned case, that the principles as laid down by the House of Lords should be the guiding factors for appreciating the law of tortious liability. Hence before one can proceed any further, it becomes necessary to analyse the common law relating to negligence as laid down by the House of Lords through the centuries.

English view on negligence in general

The term negligence was aptly summed up by Alderson, B. in Blyth v. Birmingham Waterworks Co.2 as:

"Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

The elements of negligence have been neatly summed up by Viscount Simonds3 According to him, there are three elements of negligence, which the plaintiff has to prove before he may succeed in a claim for damages due to negligence. They being:

(a) a duty of care owed to him by the defendant;

(b) a breach of that duty by the defendant;

(c) the sufferance of loss by the plaintiff pursuant to the breach of that duty by the defendant.

Elements of "duty of care"

Before an action for negligence can succeed, it is essential that a "duty of care" exist between the plaintiff and the defendant. In Bourhill v. Young4 Lord Macmillan had explained the meaning of the term "duty of care". According to him, it is a duty to avoid doing or omitting to do something, which may have as its reasonable and powerful consequences, injury to others. The duty is owed to those to whom such injury may reasonably and probably be anticipated if the duty is not observed.

Further the test whether a "duty of care" existed between the plaintiff and the defendant was laid down in Caparo Industries (P) Ltd. Co. v. Dickman5 The House of Lords, in that case, stated that the duty of care in tort depends not solely upon the existence of the essential ingredients of the foreseeability of damage to the plaintiff but also upon its coincidence with a another ingredient called "proximity" and also if it be just and reasonable to impose such a "duty of care".

Hence the three requirements to prove the existence6 of the "duty of care" between the defendant and the plaintiff are:

(1) foreseeability,

(2) proximity, and

(3) that it be just and reasonable for the courts to impose such a "duty of care".

Foreseeability

The requirement of foreseeability has been aptly described by Lord Atkin in the seminal case of Donoghue v. Stevenson7 wherein he explained that a duty owed to the plaintiff to take reasonable care of his interests cannot arise unless the defendant can reasonably be expected to foresee that the plaintiff is likely to be injured by his conduct.

Proximity

Proximity is another ingredient of the term "duty of care" and is usually used synonymously with Lord Atkin's "neighbour principle". In a celebrated passage, Lord Atkin had held in Donoghue v. Stevenson7:

"You must take reasonable care to avoid 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 so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question."

Just and reasonableness

Lastly, the ingredient of "just and reasonableness" is a factor, which must be taken into consideration while analysing the concept of "duty of care". The court, in determining the existence of a duty of care, must take into account material factors such as the existence of an alternate remedy or a more appropriate bearer of the relevant loss.

The law relating to negligence by a public authority

General reliance also imposes a "duty of care"

Sometimes, general reliance on public powers may also give rise to a duty of care. Such a view has been adopted in Sutherland Shire Council v. Heyman8 by the High Court of Australia. The High Court expressed the view that the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its functions with due care, without the need for contributing conduct on the part of the defendant or action to his (own) detriment on the part of the plaintiff. The term "reliance or dependence" in this sense is general, the product of the growth and exercise of the powers designed to prevent or minimise the risk of personal injury or disability, which is recognised by the legislature to be of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. Such situations will generate on one side (the individual) a general expectation that the power will be exercised and on the other side (the public authority) a realisation that there is a general reliance on its exercise of the power.

Initial English decisions relating to negligence by a public authority

Till at least the first half of the 20th century, courts in England had almost always shied away from holding a public authority liable for negligence in the performance of its statutory duties. For example in the case of Sheppard v. Glossop Corpn.9 it was observed that, the local authority was under no legal duty to act reasonably in deciding whether it should exercise its statutory powers or decide to what extent and over what particular area or period in time, it shall exercise its powers.

Such a view was reiterated in East Suffolk Rivers Catchment Board v. Kent10 where it was observed that, when a public authority is entrusted with a mere power, it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power.

This is in spite of Mersey Docks and Harbour Board Trustees v. Gibbs11 where it had been held as clear law that, in the absence of an express statutory provision, a public body is in principle liable for torts in the same way as a private person.

However, a germ was instilled by Lord Greene, M.R., which later revolutionised the concept of negligence, in Fisher v. Ruislip-Northwood Urban District Council12 when he observed:

"If the right which is being exercised is not a common law right but a statutory right, a duty to use care in its exercise arises, unless, on the true construction of the statute, it is possible to say that the duty is excluded."

Restrictions in holding a public authority liable for negligence

Through the 1970s, the House of Lords by way of a string of decisions laid down restrictions on when an aggrieved party could succeed against a public authority in establishing statutory or common law negligence. The restrictions included:

(1) Discretion

In the case of Home Office v. Dorset Yacht Co. Ltd.13 it was clearly stated that whenever Parliament confers discretion there may and almost certainly, will be errors of judgment in exercising such discretion and Parliament could not have intended that members of the public should be entitled to sue in respect of such errors. However, the House of Lords in the abovementioned case opined, that there must come a stage, when the exercise of discretion is so careless or unreasonable that there was no real exercise of that discretion which Parliament had conferred and then there is no a priori reason for excluding all common law liability.

(2) Policy/operational area

Most or probably all statutes relating to public authorities, contain in them a large area of policy. The courts call this "discretion", meaning that the decision is one for the authority to make and not the courts. Many statutes also prescribe that in addition to the area of policy there is an operational area. Although this distinction between a policy area and an operational area is convenient it is none other than a distinction of degree. Such operational powers or duties have in them some element of discretion. It can therefore be safely said that the more operational a power or duty is, the easier it is to superimpose upon it a common law "duty of care". The case of Anns v. Merton London Borough14 strongly supported such a view.

Consequences of Anns case14

Until Anns case14 there was no authority in English law that treated a statutory duty as giving rise to a common law duty of care. The law has radically developed since then, with the House of Lords recently holding that in some cases even a statutory power where there is no duty to act may also give rise to a common law duty of care.15

However, the decision in Anns case14 articulated a response to growing unease over the inability of public law, in some instances, to afford a remedy matching the wrong. It showed that a remedy in the form of damages is possible without confusing the uneasy divide between public and private law.

Fallacy of the policy/operational area dichotomy

The distinction made between a policy and an operational area led to complications rather than clarifications on the legal position of public authorities in cases of negligence. In India, the Supreme Court in the case of Rajkot Municipal Corpn. v. Manjulben Nakum16 has observed that such a distinction is in fact clarificatory:

"27. The distinction between area of public policy and operational area is a logical and convenient one as has already been elaborated. Undoubtedly, a public authority is liable for the negligent acts of its servants or agents in carrying out their duties, or exercising their powers, within the operational area, although if the performance of their duties or the exercise of their power involves the exercise of discretion an act will not be negligent, if it is done in good faith in the exercise of, and within the limits of, the discretion."

It is submitted, with great respect, that the Supreme Court has not been able to fully appreciate the fallouts of such a theory.

Firstly, the theory remains abstract and does not make a clear-cut distinction between the policy and operational area.

Secondly, absurd consequences have resulted due to this dichotomy. An example of this is the Supreme Court of Canada's decision in Brown v. British Columbia (Minister of Transportation and Highways)17 In that case the plaintiff was injured when his truck skidded on black ice in cold November weather. He claimed that the defendant should have put salt and sand on the road to prevent the ice from forming. The Court held that the Department's decision to continue its infrequent summer schedule of road maintenance into November was a matter of policy. The Department was therefore not negligent even if an earlier adoption of the winter schedule would have prevented the accident.

The English law of negligence after Anns case14

The House of Lords overruled Anns case14 in 1990 in Murphy v. Brentwood DC18 on the point that "pure economic loss is not recoverable in an action in negligence against a local authority".

The Privy Council in Rowling v. Takaro Properties Ltd.19 expressed its disinclination in holding a public authority not liable in negligence just on the basis of the policy/operational area dichotomy by rationalising that such distinction did not provide a touchstone of liability. On the contrary, it expressed the need to exclude altogether those cases in which the decision under attack was of such a kind that a question whether it had been made negligently was unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks.

Their Lordships went further on to hold that a classification of the relevant decision as a policy decision in this sense may exclude liability but a conclusion that it does not fall within that category does not mean that a duty of care will necessarily not exist.

This means that the fact that the decision under attack is capable of being described as having a policy character does not per se render the case unsuitable for judicial decision. Therefore, the non-justiciability of an allegation of negligence in the exercise of statutory discretion is based on the need to exclude those cases, which are unsuitable for judicial resolution.

Present view of the House of Lords on the issue

With the passage of time in England, it was rightly observed that the distinction between a policy and an operational area was an inadequate tool in discovering whether a public authority was liable for negligence. For instance, if any decision is challenged as having been made within the ambit of a statutory discretion, which in turn is categorised as a policy decision, it cannot be immune per se from any claim for negligence. Such an inference would only amount to frustrating the intentions of Parliament. Recently, the House of Lords in Barrett v. Enfield London Borough Council20 has upheld such a view.

In another recent case Phelps v. Mayor of London Borough of Hillingdon21 it was observed that when an act involves the weighing of competing public interests or is dictated by considerations on which Parliament could not have intended that the courts would substitute their own views, for the views of ministers or officials, then the court shall hold that the issue is non-justiciable on the ground that the decision was made in the exercise of statutory discretion.

Remedies available to an aggrieved party against public authorities

Substantial damages are available to the plaintiff for proven negligence of a public authority in the performance of its duties provided that the damage is not in the nature of a "pure economic loss".

Where a breach of statutory duty is alleged, then the question whether a claim for damages arises depends on the statutory provisions governing the public authority. The issue only arises outside the area where Parliament has willed that the individual shall have a remedy in damages. That gives rise to the difficulty of how much weight should be accorded to the fact that when creating the statutory function, the legislature held back from attaching the private law cause of action.

However, as observed by Lord Slynn of Hadley in Phelps case21 a common law duty of care may arise from the performance of a statutory duty or arise from the relationship between the parties in the performance of the statutory duty. A common law duty of care may coexist with a statutory duty where the duty of care is alleged to arise from the manner in which a statutory duty has been implemented in practice. Reference may be made to the House of Lords' decision in X (minors) v. Bedfordshire CC22 where it has been held that the question whether there is a common law duty and if so the question of its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. According to the Court, a common law duty of care cannot be imposed on a statutory duty if the observance of such a common law duty of care would be inconsistent with or have a tendency to discourage the due performance of the statutory duties by the local authority.

Judicial approach to the question of liability of a public authority for negligence

In Anns case14 it was observed by Lord Wilberforce that the test for the existence of a duty of care involved starting with a prima facie assumption that a duty of care exists if it is reasonably foreseeable that carelessness may cause damage and then asking whether there are any considerations which ought to negate, reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may arise. Subsequent decisions in the House of Lords and the Privy Council have preferred to approach the question the other way around, starting with situations in which a duty has been held to exist and then asking whether there are considerations of analogy, policy, fairness and justice for extending it to cover a new situation. The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person whose act or omission can be said to have caused it. The default position is that he is not.

Conclusion

Courts in England in recent years have started becoming quite intolerant towards public authorities which are negligent in the performance of their statutory duties so as to cause damage to individuals. However, on the question of liability of such public authorities towards the individual English courts have generally approached the problem in a rather cautious and sometimes conservative manner. Lord Slynn of Hadley in Barrett v. Enfield London Borough Council23 has neatly explained the reason for such a hesitant approach:

It is obvious from previous cases and indeed is self-evident that there is a real conflict between, on the one hand the need to allow social welfare services exercising statutory powers to do their work in what they as experts consider is the best way in the interest of the plaintiff without an unduly inhibiting fear of litigation if something goes wrong and on the other hand the desirability of providing a remedy in appropriate cases for harm done to the plaintiff through the acts or failures in providing such social welfare services.

*  In situations where the statutory authority has itself not provided for a remedy in damages Return to Text

**    Symbiosis Law College, Pune Return to Text

1. (1997) 9 SCC 552, at p. 567 Return to Text
2. (1856) 11 Exch 781 Return to Text
3. Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961) 1 All ER 404, at p. 414 Return to Text
4. (1942) 2 All ER 396, at p. 403 Return to Text
5. (1990) 1 All ER 568, at p. 584 Return to Text
6. It may be noted here that the so called 'caparo test' is not applied by courts in England in every single matter in negligence that comes up before them. It is only applied in those situations which are not covered by established duties of care as laid down in the case law. In all other situations the courts proceed by analogy with situations already covered by established duties of care. Return to Text
7. 1932 AC 562, at p. 580 Return to Text
8. (1985) 157 CLR 424, at p. 464 Return to Text
9. (1921) 3 KB 132, at p. 150 Return to Text
10. (1940) 4 All ER 527, at p. 543 Return to Text
11. (1866) LR 1 HL 93 Return to Text
12. (1945) 2 All ER 458, at p. 462 D-E Return to Text
13. (1970) 2 All ER 294, at p. 301 Return to Text
14. (1977) 2 All ER 492, at p. 500 Return to Text
15. Stovin v. Wise, (1996) 3 All ER 801 Return to Text
16. (1997) 9 SCC 552, at p. 576, para 27 Return to Text
17. (1994) 1 SCR 420 Return to Text
18. (1990) 2 All ER 908 Return to Text
19. (1988) 1 All ER 163, at p. 172 Return to Text
20. (1999) 3 All ER 193, at p. 222 Return to Text
21. (2000) 4 All ER 504, at para 45 Return to Text
22. (1995) 3 All ER 353, at p. 371 Return to Text
23. (1999) 3 All ER 193, at p. 209f Return to Text