Tort: Scope of liability of public authorities.

Administrative Law – Public duty – Omission – Torts – Negligence – Damages.

Existence of Statutory negligence:

Duty of care must be carefully examined and the foreseeability of damages or danger to the person or property must be co-related to the public duty of care to infer that the ommission/non-feasance gives rise to actionable claim for damages against the defendant — Foreseeability of the danger or injury alone is not sufficient to conclude that duty of case exists

Duty of care:

The general rule is that the public authorities are liable for positive action (misfeasance) but not for omission (non- feasance). In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighbourhood nexus which are existing between the person who suffered damages and wrong-doer where there is allegation of wrong doing it has to be seen whether the latter ought reasonable to have foreseen that the carelessness on his part, is be likely to cause damage to the other. In other words, if it is a reasonable foreseeability that carelessness on the defendant’s part will cause damage to the plaintiff, then the defendant is plaintiff’s neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage.

Statutory power is not something like a statutory duty. Before the repository of a statutory power can be made liable for negligence for a failure to exercise it, the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed. The question whether the Act confers a private right of action depends upon the interpretation of the provisions of the Act. But by process of statutory interpretation, the courts may not superimpose a general Common Law duty on a statutory authority in order to give effect to its presumed idea of policy or duty. Common Law does not super-impose such a duty on a mere statutory authority. The nature and scope of the Common Law duty of care owed by a public authority exercising statutory powers must be discerned carefully by reading the provisions of the Act, the object it seeks to achieve and other relevant considerations. The public authority is under a duty to take some action whether or not in exercise of its statutory power or not to prevent injury only if its antecedent acts, have created or increased a risk of injury of that kind. The normal duty of care cannot be a duty to exercise the statutory power to prevent injury to him unless the Act has imposed such a duty or unless the authority has itself created or increased the risk of injury of the kind. In the absence of such a statutory duty, a normal duty of exercise of care cannot arise unless the act actually done in exercise of a statutory power, creates or increases the risk of foreseeable injury to another and then the duty is to do those acts with reasonable care and to take reasonable precautions to prevent that injury from occurring. The duty of care, therefore, must have co-relationship to the kind of damage that the plaintiff has suffered and not to the plaintiff or a class of which the plaintiff is a member.

The exercise of power/omission must have been such that duty of 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 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 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 performing 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 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, is cast on it, the effect would be that the authority would omit to perform 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 public duty of care to infer that the omission/non-feasance gives rise to actionable claim for damages against the defendant.

[Source: Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum (17/01/1997), 1997(9) SCC 552: 1997(1) JT 580: 1997(1) Scale 370: 1997(2) Supreme 294: 1997(2) CLT 396(SC) [K. RAMASWAMY, J.: G.B. PATTANAIK, J.]

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