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TMI Blog1997 (1) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ₹ 1 lakh from the appellant-Corporation. The trial Court decreed the suit for a sum of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prerequisite 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forestated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopting 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 Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 Simo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istakes in the exercise of that 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 cine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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", 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected 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 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 reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring 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 extent that a Corporation can keep constant vigil by testing the health ..... X X X X Extracts X X X X X X X X Extracts X X X X
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