RAJKOT MUNICIPAL CORPORATION v. MANJULBEN JAYANTILAL NAKUM AND ORS.

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 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 defenda~t fall below the standard that a reasonable man would have undertaken, the court may ask 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 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 occur 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 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 carelessly; it is a duty not to inflict damage carelessly. Since damage is the gist of the action, what is meant by "duty of care situation" 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

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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 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 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 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 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 law has developed in such a way as to allow 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 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- 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 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 - .., a will only arise in limited number of situations. But the decisions reached by the application ·of these special rules often seem artificial and unduly H

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

A.. restrictive and the application 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 de termining this question, the court could take into account 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. Thus court would proceed .J. ~ with caution in ar eas of doubt or difficul.ty. In the conclusion, it is stated -=::: at page 137 that if cases dealing with a negligent failure to warn were dealt c with by the principles applied in ordinary negligence actions rather than by special rules which depend on whether the failure was considered 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 primitive state and it was feared that the courts would be ovenvhelmed with actions alleging omissions. However, D the law of negligence is now considerably mor e sophisticat ed 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 conferred on ~hem with the intention that it would be exercised if and when public interest requires it. Where the public authority has decided to exer cise a power and has done ~

it negligently a person who has acted in reliance on what the pubHc 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 foreseeable or threatened or imminent. In Donoghue's case, the defendants wer e manufacturers of ginger-beer which they bottled. 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-beer 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 stoppered so that it could not be tampered with unlit it was opened in order that the contents should be drunk. The House of Lords had held that these facts e!itablished in law a duty to take care 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 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 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 c cases found in the books arc but instances. The rule that you are to live with your neighbour becomes in law 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 contemplation 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. E 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 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 tortious 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. 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 B 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 l 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 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 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 officers incharge. The defence was that the office~s had no control over

RAJKOfMUNICIPALCORPN.v. MANJULBENJAYANTILALJRAMASWAMY,J.J 347

A .., .; the boys. There was no carelessness on their part and that the damage was 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 suffe red the damage. The B argument of the Attorney General on behalf of the Home Office was that 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 seen that the damage was in fact the i_nevitable result of the careless act or c 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 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_a t liappens was predetermined. Yet it has never been the 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 ~ 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 I conduct caused the plaintiff loss. At page 1030. Lord Reid held 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 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- though it does occasion damage to anyone; but an action does lie B 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 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 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, 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 principle beyond the test of remoteness as applied to the particular case". G 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 JAYANTILAL(RAMASWAMY, J.J 349

-;; itself, or of their common law powers, to prevent damage and injury being 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 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 esta~lish that a duty of care arises in a particular situation, it is not c 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 to whom it is owed or the damages to which a breach of it may give rise". E 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, (1985) 157 CLR 424 the High Court of Atistralia declined to follow Anns G 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 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 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 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 of an approximate categorisation, one looks in vain for some common

RAJKOT MUNICIPAL CORPN. v. MANJIJLBEN JAYANTILAL [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 B 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." 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 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 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 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 adjacent 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 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 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 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 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 the deliberate wrong doing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage 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 person 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 demolished, 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 person to take precautions against the wrongdoing of third p_arties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not 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 courts and applications of the negligence, proximity and remoteness 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 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 particular 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 performance 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 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 held that the plaintiff was not depending upon the exercise of the pc wer is that had caused damage. The ~xistence of that power 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 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 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 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, Alder- men 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'~IJ ULBENJAYANnLAL[RAMASWAMY.J.) 355 under the Public Authorities Act,· 1875. On D ecember 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 H ealth Act, 1875, it was held that 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 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 cricket 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 cricket ground went 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 Porter at page 858 had held that undoubtedly, one would know that bitting of a cricket ball out of the ground was an event 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 safely 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 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 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 must be, taken. Lord 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 reasonable man. Jt is, therefore, not enough for 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 they ought, as reasonable men, to have foreseen the probability of such an occurrence. Lord R eid at page 865 has held 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 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 m~ would not do". "I think that reasonable men 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 substantial. 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 owed to those to whom injury may reasonably and probably be anticipated, if the duty is not observed". It was held that the Court must be careful to place itself 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 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 occurrence and provide ag~l it": At page 867, it was further held 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 law. But I do not think that his case comes within any such special category, It was argued that this case comes within the

.RAJKOTMUNICIPAL CORPN: v. MANJULBEN JAYANTILAL [RAMASWA.).!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 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 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 Upon- 4 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 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 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 :

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

A feet above the ground. In fine weather the branch suddenly broke, fell 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 'd ue to a latent defect not discoverable by any reasonably 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 not liable, inasmuch as he had not created the danger and had no knowledge, actual or imputed, of its existence. The principle laid down 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 appear upon proper inspection, that nature can no longer be relied 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 negligence on his part, he collided with the tree and died of his injuries. The plaintifrs action based on 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 nuisance constituted by tlie state of his property· unless {a) he caused it or by the neglect of some 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 became 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 were 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 feUon their car, wrecking it and injuring the appellants. The tree that was fallen was proved to have bee n due to a diseas~ of the roots, which was of long standing but the disease had not taken a normal course and there was no mdication from the condition of

RAJKOT MUNICIPAL CORPN. v. MANJULBEN JAYAN11LAL (RAMASWAMY, J.) 359

the tree above ground that it was affected by the disease. The tree was 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 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 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 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, 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?" F 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 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 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 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 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 · E 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 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 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 statutory duty. Duty of care, therefore, must be carefully examined and the G 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 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 _p erson 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 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 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 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 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 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 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 tort of negligent. The defect is apparent. Negligence is obvious, proximity and neighbourhood anticipated and lack of duty of care stands established. The plaintiff, in coMmon law action, is entitled to sue for tort of negligence. B The authority wi!J be liable to pay the damages for omission or negligence in the performance of the duty. Take another instance, where while 'A' is passing on the road, there is sudden lightning and thunder and 'A' takes ~,

shelter under a tree and the lightning falls on the tree and consequently ' 'A' dies. In this illustration, there is no corresponding obligation 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 fa lls 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 of negligence. But 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 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 Corporation 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 lack of care resulting in damage and foreseeability of the damage. The case in hand falls in this category. Jayantilal was admittedly passing on the roadside to allend to his office duty. The tree suddenly fell and he sustained injury and consequently died. F ....... It was difficult to foresee that 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. There is no duty to maintain regular supervision thereof, though the local G authority/other authority/owner of a property is under a duty to plant and maintain the tree. The causation. for accident is too remote. Consequently, 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 thereo( It would be difficult for the local authority etc. to foresee H

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

J= 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 and is allowed accordingly. Judg- ment ~d decree of the trial Court, as affirmed by the High Court, stands 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 though 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.