RAJKOT MUNICIPAL CORPORATION v. MANJULBEN JAYANTILAL NAKUM AND ORS.

The Judgment of the Court was delivered by E K. RAMASWAMY, J. Leave granted.

This appeal by special leave arising from tbe judgment ·o f 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 F 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. · 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 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 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 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 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 Jayantilal or class of persons, i.e. pedestrians and that duty should be one which the C Corporation owed to the plaintiff himself. 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. D 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 in its conclusion that the statutory duty of the Corporation to maintain trees carries with it the duty to take care by regular examination of the health of the trees and felling of decaying trees; it lost sight 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 proposition of law.

In determining the legislative intent, the Court is required to consider three factors, viz., the context and the object of the statute, the nature and precise scope of the relevant provisions and the damage suffered not of the kind to be guarded against. The object of the Act is to promote facilities of general benefit to the public as a whole in getting the trees

-- .... planted on road-sides, the 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 REPORTS [1997) 1 S.C.R.

A process of interpretation, the Court would not readily infer creation of -r 1t;

individual liability to a named person or cause of action to an individual, unless the Act expressly says so. While considering the question whether or not civil liability is imposed by a statute, the court is required to examine all the provis.ions to find out the precise purpose of the Act, scope and content of the duty and the consequential cause of action for omission B thereof. 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. ...

Before issuing notice, this Court directed the appellant to deposit Rs. c 5,000 towards the cost of the respondents to defend the action in this Court, since an important question of law of general importance arises in the case. Accordingly, the said sum come to be deposited. When notice was issued, the respondents sent a letter to the Registry stating that apart from the said sum of the Rs. 5,000, additional amount that was decreed by the lower Court, should also be directed to be deposited as a condition to defend the case and further costs. Under those circumstances, by order dated August 24, 1995 we observed that the stand taken by the respondents was unreasonable and not correct. Slui P.S. Narasimha, who was present on that day .in this Court, was requested in assist the Court as amicus curiae and to receive the above sum of Rs. 5,000 towards his fee. We directed the counsel to submit their written arguments. Accordingly, the counsel have submitted their written arguments. Shri Narasimha, learned amicus curiae made thorough study on the subject and has given valuable assistance. We place on record our deep appreciation of the pains taken by him. Accord- ing to the learned counsel, the liability in tort which arose in Common Law F has been evolved by the courts in England but law has not b een well -,... developed in our jurisdiction. In Common Law, there existed duty of foreseeability, :proximity, just and reasonable cause and policy. Attempts have been made to identify general theory of liability in tort consistent with causation, fairness, reciprocity and justice, balancing conflicting interests as we11 as economic efficiency. The t')rtious liability falls into one of the G three categories, viz., (a) some intentional wrong doing (b) negligence and (c) strict liability. In this case, we are concerned with negligence on the part of the appellant- Corporation in maintaining the trees on the road- sides. The principle evolved by the courtc; in England is that a r~asonable foresight of harm to persons whom it is foreseeable or is likely to harm by one's carelessness is essential. For the plaintiff to succeed, in an action for + - H

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAYANTILAL (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 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 and streets vest in the Corporation. It was its responsibility, therefore, to maintain the trees. The Corporation should have the foresight that trees, if neglected to be maintained properly, could cause injury to passers·by. The findings recorded by the courts below that the appellant has com· mitted breach of duty of care is a fmding of fact. From the breach of the duty of care, the entitlement to damages arises to the respondents due to the death of Jayantilal. The learned counsel also relied upon K Ramadas _,. .. Shenoy v. 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 either by fulfillment of the duty or omission to carry it out or by negligence in its performance. In the light of the above principles, he submitted that though the duty of the appellant to plant trees is discretion- ary nonetheless it has a statutory duty to plant the trees and 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/damages caused to the respondents. The High Court, therefore, has not committed any error of law warranting interference.

The diverse contentions· give rise to the questions : whether the appellant-Corporation owes a duty of care to maintain the trees as a statutory duty and whether the cause of death of Jayantilal bas proximate relationship with the negligence giving rise to tortious liability,entailing payment of compensation to the respondents? The marginal note of Sec- - fl

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 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 environment. An attempt had been made in 1965 to codify the law of tort in a statutory form. The Bill in that behalf, reintroduced in the Parliament in 1967, died as still born. Therefore, there is no statutory law in India, unlike in 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 principles evolved by the courts in England on grounds of justice, equity and good conscience (vide H Ram011bhai PrabhaJbhai's case). Common law principles of tort evolved by

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 evolutionary process by applying them from case to case and in some cases the statement of law laid by H ouse 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 some 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 and 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 Bench 22 and Glasgow Co1poration v. Loremer, (1911) AC 209. D 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 arises from the breach of a duty primarily ftXed by the law; ·such duty is towards persons generally and its breach is redr essable 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 parties themselves. In tort, the duty is towards the persons generally while in contract it is towards specific person 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 pleaded in contract. The law of tort prevents hurting one another. All torts roosist of violation of a right in the plaintiff. Tort law, therefore-, is primarily evolved to 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 for injuries by one person as a r esult 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 the harm caused through taking that amount away from another. The economic assets of the community do not increase and expense is incurred in the process of realisation, as stated by Oliver Lindel Holmes in his "Common Law" at page 96 (1881 Edn.). The Security and stability are generally accepted as worthwhile social objects, but there is no inherent reason for preferring the security and stability of plaintiffs to those of defendants. Hence, shifting of loss is justified only when there exists special reason for requiring the defendant to bear it rather than the plaintiff on whom it happens to have fallen. (vide "Common Law" of Holmes).

In "Blacks Law Dictionary" (6th Edn.) at page 1489, 'tort' is defined as violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other involved in a given transaction. There must always be a violation of some duty owed to plaintiff and generally such a duty must arise by operation of law and not by mere 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 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 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 similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a _reasonable and prudent man would not do. 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 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 on breach of contract or tort. We are concerned in this case with tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in - (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been ·carelessly breached. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct ... fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Negligence would in such acts and omissions involve as unreasonable risk of harm to others. The breach of duty causes damage and how much is the damage should be comprehended by the defendant. Remoteness is relevant and compensation on proof thereof 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 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 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 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 thirdly, 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 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 not give rise to liability unless the law fastens the duty of care in given circumstances. Duty is an obligation recognised by law to avoid conduct brought with unreasonable risk of damage to another. The question whether duty consists in a particular situation 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 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 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 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, generally 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 causing particular type of injury or damage to his person or property. The

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 laid down as an acid test. c 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 Gorris v. Scott, {1874) LR 9 Ex. 125 and Kinlgollon v. W. Cooke & Co. Ltd., D

l ~ ..,.. (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 ~ require evaluation and appliC3'tion to a given set of facts in the case on hand. E 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 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 r_easonably foreseen him as likely to be affected thereby. .i Negligence connotes inadvertence to the consequences of his conduct which G 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 Jaw 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 liability for civil action; (c) the statutory duty was not fulfilled; and (d) the breach of duty has caused him injury. These essentials are required to be considered in each case. The action for breach of statutory duty may belong to the ... I 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 occassionally 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 remedy provided for breach of duty. It would, therefore, be of necessity in (

every case to find the intention of legislature in creating duty and the resultant consequences suffered from the action or omission thereof, which are required to be considered. No action for damages lies if on proper construction of statute, the intention is that some other remedy is available. One of the tests in determining the intention of the statute is to ascertain whether the duty is owed primarily to the general publjc or community and

..=- - RAJKOTMUNICIPAL CORPN. ,.. MANJULBEN JAYANTILAL [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

lI conclusive. .,. Duty may be of such paramount importance that it is owed to all the public. It would be wrong to think that on an action, the duty could be -1 • 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 for misdemeanour in respect of the injury to the public and the action for G 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 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 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 whether the -liability is absolute or dependent on wrongful intent or negligence. It seems to be contrary to statutory intendment to impose liability upon Public body for a thing for which no reasonable care in the performance of the concerned act could be inferred from the language "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 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 a when it exercises a statutory power or when there exists 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 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 action.

Generally, a public authority entrusted with no statutory obligation to exercise a power, does not come under common law duty of care to do so but by conduct the public authority may place itself in such a situation that it 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 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 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 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 financial, economic, social or political factors or constraints. In that behalf, the dutY of care stands excluded or any action that is merely the product of administrative direction etc. may not provide causation for damages but when the performance of the duty, though couched with discretion, is enjoined on the statutory authority, the question whether the power, if exercised with due care, would have minimised, rather prevented or avoided ·the damage sustained by the plaintiff, requires to be examined.

Tlie general rule is that the public authorities are liable for positive action (misfeasance} but not for omission (non-feasance). In· considering )r

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 relationshlp of

RAJKOTMUN!CIPAL CORPN. v. MANJULBEN JA YANTILAL(RAMASWAMY, J.] 335 -proximity or neighbourhood nexus which exists between the person who 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 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 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 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 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 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, i 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 depends upon the interpretation of l 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 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 some action whether or not in exercise of its statutory power or not to prevent injury only if its antecedent acts, have created or increased a risk of injury of that kind. The normal duty of care cannot be a duty to exercise the statutory power to prevent injury to another or otherwise to act in such a way as to prevent injury to him unless the Act has imposed such a duty or unless the authority has itself created or increased the risk of injury of )'-·

that kind. In the absence of such a statutory duty, a normal duty of exercise of care cannot arise unless the act actually done in exercise of a statutory power, creates or increases the risk of foreseeable injury to another and then the duty is to do those acts with reasonable care and to take reasonable precautions to prevent that injury from occurring. The duty of care, therefore, must have co-relationship to the kind of damage that the plaintiff has suffered and not to the plaintiff or a class of which the plaintiff is a member.

In "The Modem Law of Tort, London, Sweet & Maxwell (1994 H Edn.), ~.M. Stanton has discussed the breach of statutory duty, express or

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 B a common law tortious liability created by courts to allow an individual to claim compensation for damages suffered as a result of another breaking the provisions of a statute which does not, on its face provide a remedy in tort. A tortious remedy is obviously available if a statute says that 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 .E antiquity and were approved in Lord Diplock's seminal speech in Lonrho Ltd. v. Shell Petroleum Co. Ltd., (1982) AC 173.

That the words in the judgment cannot be construed as in the statute and the presumptions play only limited role. They will yield to competing evidence for the contrary result which is found in the statute. The use of presumption in relation to issues of breach of duty should not be surprising. The problem is not the normal one faced by those who have to 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 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.

i 'i A presumption will arise that the tort of breach of statutory duty is to be inferred. This presumption is an exception to the presumption of a non- actionability derived.frompositive act. It, therefore, only applies to a statute which provides its own enforcement machinery.

Thi~ presumption requires the ·statute to be interpreted to see B 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 determining whether a defined class which is intended to have enforceable D ... 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_a tement 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

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

concerned with the standard of care that ou~ht to have adopted in the 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. c The second stage of the te!\t 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. Trus new approach represents a sruft of emphasise rather than a new substantive 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 careful 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 F

(iii) even where {i) and (ii) are satisfied it must be just an rea'ionable to impose such a duly.

At page 30, he has stated relationship 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 . -f the tort of negligence. It is the foundation of the neighbour principle, but it is also used as a test of breach of duty and remoteness of damage. The fact that particular consequences were unforeseeable may lead to the conclusion that the defendant's behaviour was not careless and even where 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 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 foreseeable involves a choice. There is no ftxed point on the graph at which the law requires people to take account of a possibility. 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, which may mean that it must be foreseeable as a possibility or probable or more probable than not or likely or very likely. This scope for ambiguity ;

allows the concept of foreseeability to be used as a control mechanism to admit or deny recovery of damages in certain types of cases. This becomes most apparent when the courts feel constrained, either by authority or reasons of policy, to deny liability and do so by relying on an absence of reasonable foreseeability which attributes to the reasonable man an 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 deny liability by holding that there is no duty of care even though· the neighbour principle appears to be satisfied they are setting the limits of actionability in negligence as a matter of policy. Foreseeability may be necessary but it is not a sufficient criterion of liability. Secondly, ever, where it is accepted that a particular type of loss is capable of giving rise to liability in negligence, the court may conclude that the defendant did