http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 33  

PETITIONER: RAJKOT MUNICIPAL CORPORATION

       Vs.

RESPONDENT: MANJULBEN JAYANTILAL NAKUM & ORS.

DATE OF JUDGMENT:       17/01/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Ramaswamy, J. Leave granted. This appeal  by special leave arising from the judgment of the Division Bench of the Gujarat High Court, dated March 20, 1991  in First  Appeal No.259  of 1980, gives rise to an important question  of law  of liability  for negligence  in causing the  death of  one Jayantilal,  the husband  of  the respondent No.1  and father  of the  respondents Nos. 2 to 4 due to  sudden fall  of a  tree while  he was passing on the road in  Kothi compound of Collectorate on his way to attend to his  duties as  a Clerk  in the office of the Director of Industries, Rajkot. 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 his office,  a road-side  tree suddenly  fell on  him  as  a result of  which he sustained injuries on his head and other parts  of   body  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 appellant had failed in  its statutory duty to check the healthy condition of trees  and to  protect the deceased from the tree falling on him resulting in his death. On appeal, the Division Bench has held  that the  appellant has  statutory duty  to  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 respondents 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 33  

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 Jayantilal.  The  Division  Bench  accordingly confirmed the decree of the trial Court. Thus this appeal by special leave. Shri  T.U.   Mehta,  learned  senior  counsel  for  the Corporation, contended  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 to take 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 that the occurrence had  taken place  for not taking reasonable care. In the  nature of  the  things,  it  is  difficult  for  the Corporation 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 f a statutory duty as the case  where by  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 remises in its periodical  treatment to  the plants but was careless in the breach  of specific  legal  duty  of  care  towards  the deceased Jayantilal.  The Corporation could not foresee that a tree  would fall  all of  a  sudden  when  Jayantilal  was passing on  the footpath.  There is  no reasonable proximity between the  duty of  care and the doctrine of neighbourhood laid by  the House  of  Lords  in  Donoghue  v/s.  Stevenson [(1932) AC  562]. The  Common Law liability on the part of a statutory Corporation  is  now  authoritatively  settled  in Murphy v/s.  Brentwood District  Council (1991)  1  AC  398] over-ruling the two tier test laid down in Anns. v/s. Merton London  Burough   Council  [(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 exists towards  the deceased Jayantilal or class of persons, i.e. pedestrians  and that  duty should  be  one  which  the Corporation owed  to the  plaintiff himself.  This should be pleaded and  proved which  is lacking  in the  present case, Knowledge of  harm likely to occur to the deceased is a pre- requisite  of   liability  which   must  in  some  sense  be foreseeable. It was  further contended that though Corporation has a statutory duty to plant trees, no action will lie against it for damages  since the  indemnity extends  not merely to act itself but  also to  its necessary  consequences.  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 ad felling of decaying trees;  it lost sight of the fact that it is only a discretionary duty. The legislature did not intend 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 33  

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 discharge of  which is  towards the  public at large and not towards an individual, even though the individual may suffer some harm.  The Act  does not  provide for any sanctions for omission to  take action;  i.e.,  planting  trees  or  their periodical  check   up   when   planted.   By   process   of interpretation, the  Court would  not readily infer creation of 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 provisions  to find  out the precise purpose of the Act, scope and content of the duty and the consequential cause of action for omission thereof. Action for damages will not lie in the  suit by  an injured person if 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.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  came to be deposited. When notice was issued, the respondents sent a letter to the Registry stating that apart from the said sum of 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 be the respondents was unreasonable and not correct.  Shri P.S.  Narasimha, who  was present on that day in  this Court,  was requested  to 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. According  to the learned counsel, the liability in tort which arose in Common Law has  been evolved  by the  courts in England but law has not been  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 well  as economic  efficiency. The tortious liability  falls into  one of the three categories, viz., (a) some intentional wrong doing (b) negligence ad (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 courts  in  England  is  that  a  reasonable 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  negligence  the plaintiff requires  to prove that (i) the defendant is under 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 (iii)  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 33  

has been  reached. It is only relevant if a duty of care has been held to exist in law. Damage similarly is also confined to the enquire of facts. Duty of care, on the other hand, is far 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 turn made it  easy to  hold in subsequent cases that there should be  liability  for  negligently  inflicting  damage  in  new situations not  covered by  previous case law because damage was foreseeable.  If want  of duty  of care  is established, there comes  to  exist  foreseeability  of  the  damage  and sufficient proximate relationship between the parties and it must be just and reasonable to impose such a duty. The legal duty to prove proximity 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  Stat Road  Transport Corporation v/s. Ramabhai Prabhatbhai ((1987) 3 SC 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 committed  breach of  duty of  care is  a finding 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/s.  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 an obligation has been imposed, whether or  not enforced  in action  for omission to perform the 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  discretionary nonetheless  it has a statutory duty to plant  the trees and to maintain 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  has proximate relationship with the negligence giving  rise  to  tortious  liability,  entailing payment of  compensation to  the respondents?  The  marginal note of  Section 66  of the Act indicates "Matters which may be provided  for by  the Corporation  at its discretion". It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 33  

envisages  that  the  Corporation  may  in  its  discretion, provide from  time to  time, wholly or partly for all or any of the  following matters,  viz, (viii)  "the  planting  and maintenance of  trees of  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 Corporation.  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 Section 66, since 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 eco- 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   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 Ramanbhai Prabhatbhai’s case). Common law principles  of tort evolved by the courts in England may be applied  in  India  to  the  extent  of  suitability  and applicability to  the Indian conditions. 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 House of  Lords, as  guiding principles  of law  on tortious liability. In  the formative  stage of  the  development  of tortious liability,  the  Corporation  being  a  Corporation aggregate  of  persons,  could  not  be  held  liable  where liability involved  some specific  state of mind as was held in Stevens  vs. 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,  malice, as  well as  for  wrong  in  which intention is  immaterial as  was held in Barwick vs. English Joint Stock  Bank [(1867) LR 2 Ex.259]; Cornford vs. Carlton Bank [(1900)  1 Queen’s  Bench 22];  and Glasgow Corporation vs. Loremer [(1911) AC 209]. In 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, page  1 it is stated that "tortious liability arises from the breach  of a  duty primarily fixed by the law; such duty is towards  persons generally  and its breach is redressable by an  action for  unliquidated damages".  Duty primarily is fixed by  law which  on violation,  fastens liability to pay damages. It  is personal  to the  injured. Tort and contract are distinguishable.  In tort,  liability is primarily fixed by law  while in  contract they  are fixed  by  the  parties themselves.  In  tort,  the  duty  is  towards  the  persons generally while  in contract  it is towards specific persons or persons.  If the claim depends upon proof of proof of the contract, action  does not lie in tort. If the claim arises, from the  relationship between  the parties,  independent of the contract, an action would lie in tort at the election of the plaintiff, although the might alternatively have pleaded in contract.  The law  of tort prevents hurting one another. All torts  consist of violation of a right in the plaintiff.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 33  

Tort law,  therefore, is primarily evolved to compensate 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 punishment, 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  result  of  the  conduct  of another. The law could not attempt to compensate all losses. Such an  aim would  not only  be  over-ambitious  but  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  thee 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  agreement  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 failure 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  similar 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. 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 "negligence" in the context of tort liability arising in this case. In every case giving rise to tortious liability,  tort consists  of injury and 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 33  

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 an 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 requires 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 requires detailed examination. Upon examination, they  are required  to further consider whether its extension  elongates that  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  circumstances require evaluation  and application  to  particular  set  of 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  create latent  source of physical danger to the person  or property  of third  party whom  he  ought  to reasonably foresee  as likely  to be  effected thereby. Thus the latent  defect causing  actual physical  damage  to  the person or  property gives  the cause of action and them 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 to the person or property of third party whom  he ought  to reasonably  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. Every case giving rise to  tortious liability,  consists of  injury and damage may be  found due  to breach  of contract  or tort.  We  are concerned in  this case  with the injury and damage in tort. Therefore, it  is necessary  to dwell,  in depth,  on strict inability, 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  negligence,  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 involves determination as a question of law. Negligence  would   include  both  acts  and  omissions involving unreasonable  risk of having done harm to another.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 33  

The breach of duty must cause damage. How much of the damage to be  compensated by  the defendant should be attributed to his wailful  conduct and  how much to his willful 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 duty and whether that duty is towards plaintiff or class of persons to which the plaintiff belongs are  important components  in  tort  of  negligence. Negligence  would,   therefore,  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 examination. 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 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 Court requires to examine the scope of duty of care which  the local  authority 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 negligence stand attracted. The Court is further required to consider whether extension of duty of care by the process of interpretation would  elongate the  public policy  or retard its object or frustrate public policy behind the statute and the inevitable  effect thereof  on the affected plaintiff as well as  the general  public. No general principle of law is desirable to be laid down as an acid test. While considering  whether  an  action  would  lie  for breach of  statutory duty, what requires to the established, among other things, is that the harm complained of is of the kind contemplated  by the statute, as was held in Gorris vs. Scott [(1874)  LR 9  Ex. 125]  and Kinlgollon vs. W. Cooke & Co. Ltd. [(1956) WLR 527]. The degree  of carelessness  in breach  f  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 application  to given  set of  facts in  a case on hand. Defendant must  be under  duty of  care not to create latent source of  physical danger/damage  to the person or property of third  party whom he ought to have reasonably foreseen as likely to  be affected  thereby. Those  latent defects cause physical danger  to the  person or the property giving cause of action and the defendant then is liable to pay damage for tortious liability.  It must,  therefore, be  the  essential element to  establish that there is positive act or duty and the defendant  is under  that duty.  The  Court  is  not  to create, by  process  of  interpretation,  latent  source  of physical danger  to the  person or  property of  third party when the  Act does  not envisage that the defendant ought to have reasonably  foreseen  him  as  likely  to  be  affected thereby.   Negligence    connotes   inadvertence    to   the consequences of  his conduct  which  can  be  a  measure  of behaviour where  one person had been careless in that he did not behave  as  prudent  man  would  have  done  whether  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 33  

advertence or  otherwise.  The  tort  of  negligence  always requires some  form of  careless conduct  which  s  usually, although not  necessarily, the  product of inadvertence. Not every careless  conduct which  causes damage,  however, will give 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 inadvertence. Thus  negligence in this sense is a ground for liability in tort. The question  emerges: as  to when  would the breach of statutory duty  under a  particular enactment  give rise  to tortious liability?  The statutory  duty gives rise to civil action.  The   statutory   negligence   is   surgeries   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  law or  private  law  duty 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 category of either strict or absolute inability which  is required, therefore, to be considered in the nature  of statutory  duty the  defendant  owes  to  the plaintiff; whether  or not  the duty  is absolute;  and  the public policy  underlying  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 occasionally the  statute may make breach of duty actionable per se.  The burden, therefore, is on the plaintiff to prove on balance  of probabilities  that the  defendant owes  that duty of care to the plaintiff or class of persons to whom he belongs, that  defendant 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 care is owed  on the  defendant. If  the statute requires certain protection on  the principle of volenti non fit injuria, the liability stands  excluded. The  breach of duty created by a statute, if  it results  in damage  to an  individual  prima facie, is  tort for which the action for damages will lie in the suit.  On would  often take the Act, as a whole, to find out the  object f  the law  and to  find out whether one has 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 s  owed primarily to the general public or community  and   only  incidentally   to  an  individual  or primarily to the individual or class of individuals and only incidentally to  the general public or the community. If the statute aims  at duty  to protection a particular citizen or particular class of citizens to which the plaintiff belongs, it prima  facie creates  at the  same time co-relative right vested in  those citizens  of which plaintiff is one; he has remedy for reenforcement, namely, the action for damages for any loss  occasioned due to negligence or for failure of it. But this test is not always conclusive. Duty may  be of  such paramount  importance that  it is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 33  

owed to  all the  public. It would be wrong to think that on an action, the duty could be enforced by way of damages when duty is  owed to  a section of public and cannot be enforced if an  individual sustains  damages to  whom the Corporation owes no  duty and no private interest is infringed. Beach 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 at  large ad 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 by way of private action for damages.  In  that  situation,  the  legislature,  while recognising the  private right vested in injured individual, may intend  that it  shall  be  maintained  solely  by  some special remedy  provided for  a particular  case and  not by ordinary method  of an  action for  damages  as  penalty  or compensation.      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 damages in respect of any special damage suffered  by an  individual. Where  special remedy is expressly provided  prima facie  that was intended to be the only remedy  and by  implication it  excludes the  resort to common law.  But this  is also  by no  means conclusive. The consideration would  be whether the statute intends to award damages for breach of statutory duty. Though general rule is that where  a statute  creates an  obligation  and  enforces performance in  a specified  manner, performance  cannot  be enforced in any other manner. It depends on the scope of the Act which creates the 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 s  a question  of interpretation whether the statute aims the thing  to be  done in  all events  or merely that person whom the duty is imposed is to use due care and diligence in the performance  of duty  or that if he fails 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 used 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 performance  of duty imposed by the statute.      It  is   now  well  settled  legal  position  by  court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 33  

pronouncements in  England that  a public  authority may  be subject to  common law  duty of  care when  it  exercises  a statutory power  or when  there exists a statutory duty. 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 occasioned and was likely to be  occasioned by  their  exercise  and  the  damage  for negligence may  be recovered.  The above  principle has been applied 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 vs. Young [1943 Appeal Cases  92]. The  House of  Lords  laid  the  test  to ascertain whether  a duty  was owed  to the plaintiff to see whether an  injury to  the  plaintiff  was  the  foreseeable result of the defendant’s conduct in given circumstances. In Bolton &  Ors. vs.  Stone [1951 Appeal Cases 850], the House of Lords  held that the foreseeability must be of reasonable possibilities. It  is not  necessary to show that the person who suffered damage should have been within the tortfeasor’s contemplation as  an identified  individual as  was held  in Farruquia vs.  Great Western  Railway [(1947) 2 ELR 565], As long as  harm to  any person  was reasonably foreseeable, it may not  matter whether  the precise chain of events leading to it  was not  foreseen as  was held  in In  re  Polemis  & Furness withy & Co. [1921 King’s Bench 560].      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 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 statutory 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 negligence 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 attracts 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 an exercise 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/s.  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  duty places itself  in such a position that others may rely on it to take  care for  their safety  so that the authority comes under a  duty of care calling for positive action, then such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 33  

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 the or  his interest  is at  risk or  in danger. Reliance by others,  therefore,   has  been   an  important  element  in establishing the existence of duty of care. The liability in negligence is  based on  the  plaintiff’s  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.      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 precaution against damage occurring to others through the acts of third 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 discretionary 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  then has been recognised  as a distinctive determining 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.      The general  rule is  that the  public authorities  are liable  for   positive  action  (misfeasance)  but  not  for omission (non-feasance).  In considering  the duty of public authority to  avoid harm  to those  likely to be affected by the exercise  of power  or duty, the courts have evolved the relationship of  proximity or  neighbourhood nexus which are existing between  the person who suffered damages and wrong- doer where  there is  allegation of wrong doing it has to be seen whether  the latter  ought reasonable  to have foreseen that the  carelessness on  his part,  is be  likely to cause damage to  the other,  In other words, if it is a reasonable foreseeability that  carelessness on  the  defendant’s  part will cause  damage to  the plaintiff,  then the defendant is plaintiff’s neighbour  and  prima  facie  owes  towards  the plaintiff a duty of care which may, however, be negatived on the ground  of public policy or reasonable care taken at the operational stage.      The distinction  between  area  of  public  policy  and operational area  is a  logical and  convenient one  as  has already been  elaborated. Undoubtedly, a public authority is liable for  the negligent  acts of its servants or agents in carrying out  their  duties,  or  exercising  their  powers, within the  operational area, although if the performance of their duties  or the  exercise of  their power  involves the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 33  

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  may  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,  unintentionally, 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 law 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  which resulted  from a negligent failure to act, there may  not be  greater difficulty  in proving causation. But  if   the  public  authority  omitted  to  exercise  its discretionary power,  there is  greater difficulty  to prove that causation  has arisen. The basic difference, therefore, between causing  something and  failure to  prevent it  from happening must  always be  kept  in  view  in  deciding  the liability for  damages resulting from the failure to perform the statutory  or common  law duty. The common law would not impose a  duty of  care on a public authority in relation to failure  to   exercise  its  power  when  those  powers  are exercisable for  the benefit  of 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) impose a duty to  exercise the  power and  confer a  private right of action in  damages for  a breach of the duty so imposed. The question whether  the Act  confers a private right of action depends upon  the interpretation  of the  provisions of  the Act. But  by process of statutory interpretation, the courts may not superimpose a general Common Law duty on a statutory authority in  order to  give effect  to its presumed idea of policy or duty. Common Law does not super-impose such a duty on a  mere statutory  authority. The nature and scope of the Common  Law   duty  of  care  owed  by  a  public  authority exercising statutory  powers must  be discerned carefully by reading the  provisions of  the Act,  the object it seeks to achieve  and   other  relevant  considerations.  The  public authority is under a duty to take some action whether or not in exercise  of its statutory power or not to prevent injury only if  its antecedent  acts, have  created or  increased a risk of  injury of that kind. The normal duty of care cannot be a  duty to exercise the statutory power to prevent injury to 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 33  

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  Modern Law  of Tort,  Landon, Sweet  & Maxwell (1994 Edn.),  K.M.  Stanton  has  discussed  the  breach  of statutory duty,  express or  inferential. He  has stated  at page 42  that the statutory tort takes a number of different forms. A  number  of  modern  statutes  expressly  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  beach  of statutory duty  denotes  a  common  law  tortious  liability created  by   courts  to   allow  an   individual  to  claim compensation for  damages suffered  as a  result of  another breaking the  provisions of a statute which does not, on its face  provide  a  remedy  in  tort.  A  tortious  remedy  is obviously available if a statute says that 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 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 Wilborne  [(1884) 2  Q.B. 402]  is a leading authority in  support of  that liability. At page 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 must  be set  against the fact that they are of considerable antiquity  and were  approved in Lord Diplock’s seminal speech  in Lonrho  Ltd. v.  Shell Petroleum Co. Ltd. [(1982) AC 173].      That the  words in  the judgment cannot be construed as in the  statute 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 construe statutes of attributing the particular meaning of  form of  wards. It  is the more difficult one of discerning the  intention of  the legislature  on  a  matter which  has  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  particular class  of persons" that if a statutory obligation or  prohibition was  imposed for  the benefit  of protection of  a particular  class of  persons 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  from  positive act. It, therefore, only applies to a statute which provides its own enforcement machinery.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 33  

    This presumption requires the statute to be interpreted to see  whether it  was intended to benefit the interests of the public  as a  whole or a defined group of members of the public. At  page 51, he has stated that presumptions are not decisive. When it has been decided which presumption applies to the  case, it  will still  be necessary  for the court to review the statute in question in order to determine whether the prima  facie result  is 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  alternative remedy exists to involve  the   presumption  of   non-actionability  and   in determining whether  a defined  class which  is intended  to have enforceable  rights vested  in it  can  be  identified. Existing presumption allows sufficient freedom of manoieuvre for courts to ensure that sensible decisions are reached. If the courts were to regard statutes containing no enforcement machinery and all other duties over which they had any doubt as being  passed in  the public  interest,  rather  than  as intended to  vest rights  in  a  defined  class  of  private individuals; were to regard the existence of standard common law  and   administrative  law   remedies  as   raising  the presumption 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 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 statement given by the House of Lords.      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  causing  damage  to  the plaintiff. Duty determines whether the type of loss suffered by the  plaintiff in the particular way in which it occurred can ever be actionable. Breach of duty is concerned with the standard of  care that  ought to  have been  adopted in  the circumstances, and  whether  the  defendant’s  conduct  fell below that  standard, i.e.,  whether he  was  careless.  The division of  negligence 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 neighborhood  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  limited the  scope  of  the duty’, should be taken into account at an earlier point when deciding  whether   a  relationship   of  proximity  between plaintiff and defendant exists. The second stage of the test 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. This new approach represents a shift of emphasise  rather than  a new  substantive test  for  the existence of a duty of care. In future, rather than starting from a  prima facie  assumption  that  where  a  defendant’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 33  

carelessness 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 issues 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 for gradual development but requiring most  careful analysis. The following 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      parties; and (iii) even  where (i) and (ii) are satisfied it must be just      and reasonable to impose such a duty.      At   page   30,   he   has   stated   relationship   of "Foreseeability  and   proximity"  thus:   The  concept   of foreseeability, i.e.,  what a  hypothetical  reasonable  man would have  foreseen in  the circumstances, is ubiquitous in the  tort  of  negligence.  It  is  the  foundation  of  the neighbour principle, but it is also used as a test of breach of duty  and remoteness  of damage. The fact that particular consequences were  unforeseeable may  lead to the conclusion that the  defendant’s behaviour  was not  careless and  even where negligence  is patent, damage 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  t virtual  impossibility,  and  in  deciding  whether  it  was foreseeable involves  a choice.  There is  no fixed point on the graph  at which  the law requires people to take account of a  possibility. It  is not  a totally 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  low  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 abnormal degree of myopia.      The proximity  is usually  used as  shorthand for  Lord Atkin’s  neighbour  principle.  This  refers  to  legal  not physical proximity.  Physical proximity  may be  relevant in deciding whether  the parties should be treated as neighbors in law,  but it  is not  an essential  requirement.  On  the "principle of  duty and  unforeseeable plaintiff,  the  word ‘duty’ is  used in, at least, three different senses. First, duty of  care may  signify the  recognition of liability for careless conduct  in the  abstract -  is this  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 33  

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, even  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 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 defendant fall below  the standard  that a  reasonable man  would have undertaken, the  court may  ask whether  the  defendant  who under a  duty was  to take further precautions? 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 remember  that the concept of duty adds nothing to the tort  of negligence.  In 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 circumstances 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 logical  equivalent of actual legal liability for damage caused by negligence. Thus to say that a duty of care exists is to  state 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 distinction  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  ad 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 Edition] - London, Sweet & Maxwell, 1989 it is stated  in Chapter  4, Para 2 "Duty of Care Situation" at page 429  that no  action lies in negligence unless there is damage. In  case 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, however the date of damage is determined. There  duty in  negligence,  therefore,  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’s 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  type of persons to which the defendant belongs. It is essential in English law that 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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 33  

situation depends  on there  being careless behaviors by the defendant, causation  of damage  ad foreseeability  of  that kind of  damage to the particular plaintiff. 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.      There is  a distinction  between misfeasance  (positive action) and non-feasance (omission). Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done  but with improper conduct. Non-feasance means non-performance of  some act  which ought to be performed or omission to  perform required duty or total neglect of duty. In the  case of  misfeasance, t e defendant is the author of the source  of  danger  to  cause  damage  due  to  careless conduct,  to   the  person/property  of  plaintiff.  He  has knowledge that the act may give rise to tort but in the case of non-feasance  several factors  require consideration  for giving rise  to actionable negligence. In "The Law of Torts" by John  G. Fleming  (8th Edn.)  1992, at  page 435  on  the Chapter of  ‘Public Authorities’, the author has stated that although public  authorities enjoy  no immunity as such from ordinary  tort  liability,  a  protective  screen  has  long remained in  the vestigial  "non-feasance"  rule  that  mere failure  to   provide  a  service  or  benefit  pursuant  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]   sometimes referred to  as pure omissions, though a fundamental one, is not one  which is  easy to  make. F.H. Bohlen suggested that "misfeasance differs  from non-feasance  in two respects: in the character  of the  conduct complained of, and second, in the  nature   of  the   detriment  suffered  in  consequence thereof".  The  first  aspect  relates  to  the  distinction between  active  misfeasance  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 preventing  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  benefits  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" of  "loss". At  page 119, it is further stated that there are, however, more practical 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 33  

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  risk may  be more  difficult in some cases of non-feasance than it is in cases of misfeasance, it would be no difference  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 differing  interpretations, both broad and narrow. In addition, the  outcome of  cases in  which an omission is at issue 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  will only arise in a limited number of  situations. But  the  decisions  reached  by  the application of these special rules often seem artificial and unduly restrictive and the application of general principles does not  necessarily mean  that  liability  will  arise  in unlimited circumstances. It would still be necessary to show that there  was sufficient proximity between the parties and a reasonably  foreseeable danger before a duty of care could arise. In  determining this  question, the  court could take into account  a broad range 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 with  caution in  areas of doubt or difficulty. In the conclusion, it is stated at page 137 that  if cases  dealing with a negligent failure to warn were dealt  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 concluded  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 overwhelmed with actions alleging omissions.  However, the  law of  negligence is now considerably more  sophisticated and  "floodgates" arguments are given much less credence than they used to be.      It could  be seen  that ordinarily principle of the law of negligence  applies to  public authorities also. They are liable to  damages because  by a 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 them with the intention  that it would be exercised if and when public interest requires it. Where the public authority has decided to exercise a power and has done it negligently a person who has acted in reliance on what the public authority has done, may have  no difficulty in proving that the damages which he has suffered  have been  caused by the negligence. Where the damage has  resulted from  a negligent  failure to act there may be  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 were manufacturers  of ginger-beer  which they  bottled. The pursuer had  been given one of their bottles by a friend who had  purchased   it  from   the  defendants.  There  was  no relationship between  pursuer  and  defendants  except  that arising from the fact that she consumed the ginger-beer they had made  and bottled. The bottle was opaque, so that it was impossible to  see that  it contained the decomposed remains of a snail. It was sealed and stoppered so that it could not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 33  

be tampered  with until  it was  opened in  order  that  the contents should  be drunk.  The House of Lords had held that these facts  established in  law a  duty  to  take  care  as between the  defendants and  the pursuer. The principle laid is thus; "a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in  the  form  in  which  they  left  him  with  no reasonable possibility of intermediate examination, and with the knowledge  that the  absence of  reasonable care  in the preparation or  putting up of the products will result in an injury to  the consumer’s  life or  property, owes a duty to the consumer to take that reasonable care". There must be ad in some  general conception  of relations  giving rise  to a duty of  care, of  which the  particular care  found in that case is  but an instance. 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 parsons who are so closely and  directly  affected  by  my  act  that  I  ought reasonably  to  have  them  in  contemplation  as  being  so affected 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-necessitations   having knowledge of hidden defect.      In Oversees  Tankship (U.K.)  Ltd. v.  Morts Docks  and Engineering Co.  Ltd.  [(1961)  AC  388]  Viscount  Simonds, speaking for  the Judicial  Committee, had laid 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  to him  by the defendant, a  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 to 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) depends  on the  reasonable foreseeability  of the consequent  damage, how  is that to be determined except by the foreseeability of the damage which in fact 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. 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 general rule  of law,  one man  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 negligence  at the  time when  the act  in question  was committed?  The   act  complained   of  must  have  rational relationship to  the damage  caused. The  tort of negligence does not  depend simply  on the  question of foreseeability. Foreseeability is  not the  sole criteria  nor does the fact that the  damage is  foreseeable creates  any onus. What the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 33  

court would  ask or  look at is the operational structure of the Act. Is this a situation where a duty does exist towards the plaintiff  or class  of  persons  to  which  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. 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.  Harwood [(1935 1 K.B. 146] wherein  Greer, L.J.  had laid thus: "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 principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendala [(1854) 9 Ex. 341], the  accident can  be said  to  be  the  ‘natural  and probable result’  of the breach of duty". This principle was further approved  by House  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 hostel  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 officers  had no  control over the boys. There was no  carelessness on  their part  and that the damage was too remote.  Lord Reid while negativing the defence had 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 who  suffered the damage. The  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  inevitable result  of the careless act of 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,  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 that happens was predetermined. yet it has never been the law that the intervention of human action always prevents  the ultimate  damage from being regarded as having  been   caused  by  the  original  carelessness.  The convenient 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 33  

human action,  the law has no difficulty in holding that the defendant’s conduct caused the plaintiff loss. At page 1030, Lord Reid  held that  "...I would  agree, but  there is very good authority for the proposition that if a person performs a statutory  duty carelessly  so that the causes damage to a member of  the public  which would  not have happened, if 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 Bann  Reservoir [91978) 3 App. Cas. 430] 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,      although it does occasion damage to      anyone; but  an action does lie for      doing that  which  the  legislature      has  authorised,   if  it  be  done      negligently."      The reason for this we think, is that legislature deems it to  be in  the public  interest  that  things,  otherwise justifiable should  be done,  and that  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  is not  the same. Then  there may,  and almost certainly will, be errors 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  has  been  no  real exercise of  the discretion which legislature has conferred, 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 981 Lord Wright had laid that the "oblige 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 held  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  is possible  for profitable to lay down any hard and fast principle beyond the test of remoteness as applied to the particular case".      In Geddis’s  case [supra], Lord Hatherley 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 precaution, by  the exercise  either of their powers created by the  Act of  Parliament 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 in Anns v. Merton London  Borough [(1978)  AC 728]  Lord  Wilberforce’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 33  

dictum of  two test  theory which  had contributed  for  the development of  law of negligence was elaborated and held at page 751  thus: Through  the trilogy of cases in this House, Donoghue v.  Stevenson [(1932)  AC 562,  Hedley Byrne  & Co. Ltd. v.  Heller &  Partnrs Ltd.  [(1964) AC  465] and Dorset Yacht Co.  v. Home  Office [(1970) AC 1004, the position has now been  reached that  in order to establish that a duty of care arises  in a  particular situation, it is not necessary to bring  the  facts  of  that  situation  within  those  of previous situations  in which  duty of care has been held to exist. Rather  the question  has to  be  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,  in   the  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 affirmatively, it is necessary to consider whether there are nay 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". That two stage test theories now stand overruled by a seven-member House  in Murphy  v. Brentwood District Council [(1991) 1  AC 398].  Lord Keith  of Kinkel  held at page 461 stated thus:  "I observe  at this  point that  the two-stage test has not been accepted as stating a universal applicable principle. Reservations about it were expressed by myself in Governors of  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  Curran   v.  Northern   Ireland   Co-ownership   Housing Association Ltd.  [(1987) AC 718. In Council of the Shire of Sutherland v.  Heymand [(1985)  157 CLR  424] where the High Court of  Australia declined to follow Anns and Yuen Kun Yeu v. Attorney  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 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 should be without remedy in this situation if he would have been  able to recover from the local authority the full cost of  repairing the  building if only the defect had been discovered before the building fell down."      In Coparo  Industries Plc.  v. Dickman & Ors. [(1990) 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 Directors alleging fraudulent misrepresentation  against its  auditors claiming that they were negligent in carrying out audit and in making the report  which they  were required to do within the terms of Section  236 and  237 of the Companies Act. The plaintiff company relied  upon the  audit report and suffered loss. In that behalf,  it was  held by  Lord Oliver of Aylmerton that "The question  is, In 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,"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 33  

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   ingradient   of   the foreseeability of  damage to  the  plaintiff  but  upon  its coincidence with  a further  ingredient to  which  has  been attached the  label "proximity"  and which  was described by Lord 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   been  found   by   the requirement of  what has  been  called  a  "relationship  of proximity"  between  plaintiff  and  defendant  and  by  the imposition of  a further  requirement that the attachment of liability  for   harm  which   has  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 denominator  by   which  the   existence  of  the  essential relationship can be tested. Indeed it is difficult to resist a conclusion  that what  have been treated as three separate requirements are,  at least  in most  cases, in  fact merely facets of  the same  thing, for  in some cases the degree of foreseeability is  such that  it is from that alone that the requisite proximity  can be  deduced, whilst  in others  the absence of  that essential  relationship can most rationally be attributed  simply to  the court’s 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, pragmetically, the courts conclude that a duty of care exists."      In Hill  v. Chief Constable of West Yorkshire [(1989) a AC 191],  the plaintiff’s  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 committed  series of  offences of  murder and attempted murder against  young 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 lack of cause of  action and  in appeal 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 and keeping down the incidence  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  a 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 33  

function, but  it is not to be doubted that they apply their best endeavors  to the performance of it. In 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  actions to  be raised against police forces on the ground  that they  had failed  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 types of failure -  for example  that a  police  officer  negligently tripped and  fell while pursuing a 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."      Smith &  Ors. v.  Littlewoods Organisation Ltd. [(1987) AC 141] 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 replacing  by  a super-market. The  cinema after  doing  some  work  remained omitted 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  fire was  deliberately started  in  the  cinema  by children or  teenagers, as  a result  of  which  the  cinema burned down  and an  adjacent cafe  ad 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 Cashfern, approving Lord Macmillan’s speech in  Bourchill v.  Young [(1943)  AC 92 104] 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  and probable  injury  to others, and  the duty  is owned  to those  whom  injury  may reasonably and  probably be  anticipated if  the duty is not observed". As  to the  negligence, approving Lord Romer, the learned law-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  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. There  is  no  such  general principle. We have, therefore, to identify the circumstances in which  such liability  the circumstances  in  which  such liability may  be imposed".  "There  was  no  evidence  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 33  

Littlewoods (the  defenders) knew of these matters" (i.e. Of the various intrusions by vandals preceding the one when the fire was  started). "Unless they had a duty to inspect there is no  basis on  which it  can be alleged that 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 took no action to keep these premises lockfast, that, in a comparatively short time before  the premises were demolished, they would be set on fire  with consequent  risk to the neighboring properties is a  matter for  the judge  of fact  to determine." At page 279, it was concluded thus: "I wish to emphasise that I circumstances which enabled the defendants to claim that the highway authority came under the duty of care.      In Burton  vs. West  Suffolk Country  Council [(1960) 2 WLR 745],  a highway  authority carried out certain drainage work on  a road  to improved  its conditions  since  it  was inadequate to  prevent flooding  when the road was subjected to heavy rain. It was the practice of the roadman to put red flags by  day and put off red lights by night whenever there was flooding  which  could  be  dangerous  to  vehicles.  In December 1954,  after 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 roadman 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 performed 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 vs. Mayor, Aldermen and Burgesses of the Borough of Glossop  [(1921) 3  King’s Bench  132] was  approved  and applied.      In Sheppard’s  case (supra),  a street was vested in an urban authority  under the  Public authority  Act, 1875,  on December 25,  1918 at  11.30 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 well 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 sufficiently under Section 161 of  the Public  Health 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  a seven  feet fence.  When the  play was  on in the cricket ground  abutting the  highway, a  person being  on a side road  of 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 33  

injury occurred.  In a  suit for damages, the House of Lords held that  the club was not liable in 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 hitting 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 safety  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, "such reasonable care a 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 on 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   convicted   of   actionable negligence.  Nor   is  the   remote  possibility  of  injury occurring enough;  there must  be sufficient  provability to lead a  reasonable man  to anticipate  it. The  existence of some risk is an ordinary incident of life, even 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 Standards 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.  It  is,  therefore,  not  enough  for  the plaintiff 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  Reid  at  page  865  has  held  that  the definition of  negligence laid  by Alderson  B. in Blyth vs. Birmingham Waterworks  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 man would not do".  "I think  that reasonable men do in fact take into account the  degree of  risk  and  do  not  act  on  a  bare possibility as they would if the risk 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 owned 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 given undue  weight to  the fact that a distressing accident has happened.  The learned law Lord also approved the dictum of Lord Dunedin in Fardon vs. Harcourt-Revington [(1932) 146 L.T. 391  at 392]  that "there is such an extremely unlikely extent that  I 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 against it",

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 33  

At page  667, 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 principle in Rylands vs. Fletcher [(1869) LR  3 HL 330], but I agree which your Lordships that there is  no substance in this argument. In my judgment, the test to  be applied  here 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  in right  to refrain from  taking steps  to prevent  the danger."  It was accordingly held  that the  cricket Board was not liable for damages.      In Baxter  vs. 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 for  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 the defendants were in consisting exclusively of  non-feasance and  that  accordingly  if  the defendant were  to be 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 vs. Kingston-Upon-Thames Corporation [(1949) 1 ELR  699], a  hole in  a asphalt  roadway was  temporarily repaired by  the highway  authority by  filing 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 the  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  a house  or the Corporation, has statutory duty to plant trees and of their upkeep. In that behalf the case law is as under:      In Noble  vs. Harrison  [(1926) 2 King’s Bench Division 332], a  branch of  a beech  tree growing on the defendant’s land overhung  a highway  at a  height of  30 feet above the ground. In fine whether the branch suddenly broke, fell upon the plaintiff’s 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 fracture was  due 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 not  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 33  

had not  created the  danger and had no knowledge, actual or imputed, of its existence. The principle laid down in Barket vs. 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 that 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  vs. 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  plaintiff’s husband  was ridding  a motor-cycle along the  highway when  without any negligence on his part, he collided  with the  tree and  died of  his injuries.  The plaintiff’s 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 the state of his property unless (a) he caused  it or  by the neglect o some duly 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 vs. Northern & London Investment  Trust, Ltd.  [(1950) 2  ALL ELR 486], the respondents were  lessees of  a block  of  flats  in  London street which  they were  occupied by  the  tenants.  In  the forecourt of  the flats,  there was  a row  of elm trees. On April 7,  1947, the  appellants were  driving past the flats when one  of the  trees fell  on their  car, wrecking it and injuring the appellants. The tree that was fallen was proved to have been due to a disease of the roots, which as of long standing but  the disease  had not taken a normal course and there was no indication from the condition of 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  has no evidence that  the tree  was affected  with a  disease  mere possibility of  the taking  protection was not sufficient as spoken by the expert witnesses. 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 is  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 distinction  between the  spot that is  much and the spot that it little frequented but, on the other  hand, I  think that  it does  end by  making  the standard of  the expert  the 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 33  

dangerously or otherwise?"      It would  thus be  seen that  each case  requires to be examined in  the light  of the  special circumstances, viz., whether the  defendant owed a duty of care to the plaintiff, whether the  plaintiff is  a person or a class of persons to which the  defendant  owed  a  duty  of  care,  whether  the defendant was  negligent in  performing that duty or omitted to take such reasonable care in the performance of the duty, whether damage  must have resulted from that particular duty of care which the defendant owed to the particular plaintiff or class  of persons.  Public authorities  discharge  public obligations to  the 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 which  the plaintiff  belongs. It  is a statutory duty of care under  common law  which could  give rise to actionable claim in the suit of the individual and it is capable of co- existence along  side a  statutory duty.  The duty  of  care imposed on  a local  authority by  law may not be put beyond what  the   statute  expects   of  the  local  authority  or Corporation to  perform the  duty. The  tort of  insuperable negligence would  emerge from  imminent  danger  created  by positive  act.  But  the  duty  of  care  imposed  on  local authority by  law may  be gauged  from the  circumstances in which and  the conditions  subject to which the duty of care has been  imposed on  the 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 belongs and that by negligent conduct the  defendant causes  damage  to  the  property  or person of the plaintiff, though the defendant is not in know of the  danger. The  defendant also  in 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.      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 of care to prevent its fault. There  would be  no special  relationship between the statutory authority  and the  plaintiff who is a remote user of the  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 belongs frequents  it. The  defendant by his non-feasance is not responsible for the accident or cause of the death since admittedly there  was no  visible sign  that  the  tree  was affected by  decease. 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 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 had occurred due to negligence, i. ., the defendant’s failure  to take  reasonable  care  as  ordinary prudent man,  under the  circumstances, would have taken and the liability  in tort  to pay  damages had  arisen. If  the defendant had  become aware of the decayed condition or that the tree  was affected  by decease  and taken  no action  to prevent the  accident, it  would be  actionable, though  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 33  

non-feasance. Here  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 circumstances is  considered to be reasonably foreseeable as likely to be affected thereby, the defendant would be liable for tort  of negligence.  If the latent defect causes actual physical damages  to the  person, the defendant 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 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 care would cause loss to the passers-by itself does not mean that such  a duty of care should be imposed on the statutory authority. The  statutory authority exercises its public law duty or  function. It would be wrong to think that the local authority always  owes responsibility  and continues to have the same state of affairs. It would be an intolerable burden of duty of care on the authority; otherwise it would detract the authority  from performing its normal duties. If he were to gauge the risk of litigation, he would avoid doing public duty of  planting and  nurturing the  trees thinking that it would be  a have  burden on  the local  authority. It  would always  cause   heavy  financial  burden  on  the  statutory authority. If  the duty  of maintaining  constant  vigil  or verifying or  testing the  healthy  condition  of  trees  at public places  with so many other functions to be performed, is cast  on it, the effect would be that the authority would omit to  perform statutory  duty. Duty  of care,  therefore, must be  carefully examined and the foreseeability of damage or danger  to the  person or  property must be co-related to the public  duty of  care to  infer that  the  omission/non- feasance gives  rise to actionable claim for damages against the defendant.      It is  seen that  when a person uses a road or highway, under common  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 established 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 the statute or does that duty carelessly, there is proximity between the plaintiff-injured person and the defendant in performance of the duty and when injury occurs  or damage  is suffered to person or property, cause of  action arises  to enable  the plaintiff  to  claim damages from  the defendant.  But when  the causation is too remote, it  is difficult  to anticipate  with any reasonable certainty as  ordinary reasonable  prudent 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 33  

sanction for negligence in that behalf. But the question is: whether the  statutory function to plant trees gives rise to duty of maintaining the trees? In a developing society it is but obligatory  on every  householder,  when  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 toward  that class  of person who frequent and pass and repass on  the public  highway or road or the public places? If the  local  authority/statutory  body  has  neglected  to 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  neighbor  relationship  and proximity of  the causation  and negligence  and the duty of care towards  the plaintiff  have been satisfactorily proved to have  existed so  as to  fasten the  defendant  with  the liability due to tort of negligence. It depends on a variety of facts  and circumstances. It is difficult to lay down any set standards  for proof thereof. Take for instance, where a hanging branch  of a  tree/tree is  gradually falling on the ground. The  statutory/local authority  fails to take timely action to  have it cut and removed and one of 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  negligence/omission in  the performance of the duty because the  proximity is  anticipated. Suppose  a  boy  not suspecting the danger 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  neighborhood anticipated  and lack of duty of care  stands  established.  The  plaintiff,  in  common  law action, is  entitled to  sue for  tort  of  negligence.  The authority will  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 lighting 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 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  most cyclist during night falls  in the  ditch, i.e.  place  of  repair  due  to negligence on  the part  of the  defendant.  The  injury  is caused to  the victim/vehicle.  The plaintiff is entitled to lay suit for tort of negligence. But in a situation like the present  one  where  the  victim  being  not  aware  of  the decease/decay, the  tree suddenly  falls in  a still weather condition, no  one can  anticipate and  its 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 inconveniences  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 attend  to his office duty. The tree suddenly fell and he sustained injury  and consequently died. It was difficult to foresee that a tree would fall on him.      The conditions  in India  have not developed to such an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 33  

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 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 suit  for tort  of negligence. It would not  be just  and proper  to fasten  duty of  care and liability for  omission thereof.  It would  be difficult for the local  authority etc.  to foresee  such  an  occurrence. Under these circumstances, it would be difficult to conclude that the  appellant has been negligent in the maintenance of the tees planted by it on the road-sides.      The  appeal,   therefore,  succeeds   and  is   allowed accordingly. Judgment  and decree  of the  trial  Court,  as affirmed by  the High  Court, stands 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 they are not entitled in  law to the same, since they are to poor and the amount must  have already  been spent  out. In  view of  the trouble taken  by Shri Narasimha as amicus curiae, we direct the Corporation  to pay  him a  further sum  of Rs.  5,000/- [Rupees five  thousand only]  within a  period of two months from the receipt of this order.