V. NADARAJA, Appellant, and THE ATTORNEY-GENERAL et al., Respondents

041-NLR-NLR-V-59-V.-NADARAJA-Appellant-and-THE-ATTORNEY-GENERAL-et-al.-Respondents.pdf

.136
SINNETAMBY, J.—Nadaraja v. Tfie Attorney-General
ZI956Present; Gunasekara, J., and Sinnetamby, J.
V. NADARAJA, Appellant, and THE ATTORNEY-GENERAL.el al., Respondents
S- C. 97 (Inly.)—D. C. Colombo; 26,071
JDelicl—Crown—Inability to be sued—Applicability oj English Law—Civil■Law Ordinance (Cap. 66), s. 3.
Tho Crown is not liable to be sued in tort for the acts of its servants. Thestatuto law (Crown Proceedings Act) now prevailing in England is not applicablein Ceylon..'
j/VpPEAL from an order of the District Court, Colombo..-»
S. Sharvananda, for tho plaintiff-appellant.
V. Tennekoon, Crown Counsel, with A. E. Keuneman, Crown Counsel,for the Attorney-General.
Cur. adv. vult.
September 27, 1956. Sinnetamby, J.—..
The facts of this case are shortly as follows : A railway train belonging .:o the Ceylon Government and driven by the 1st defendant struck andnjured a lad by the name of Ravindran who subsequently on the samelay, viz., 5/4/51 succumbed to his injuries. The plaintiff who is thoathcr of Ravindran and had also been appointed the Administrator of
-SljrjTETAMBY, J.—Nadaraja v. The AItorneyzOencral13T
his Estate ijistituted the action against the 1st defendant and the Govern-ment of Ceylon as 2nd defendant for the recovery of damages alleging:negligence on the part of the 1st defendant in driving the said railwaytrain and a failure on the part of the second defendant to fulfil its dutyto take reasonable care to avoid acts and omissions it can reasonablyforesee.■'
When issues were being framed at the commencement of the trial in the-Court below learned Counsel for the appellant suggested inter alia thefollowing issues :—
Was the 1st defendant at the relevant time acting as theagent of the 2nd defendant ?
If issue 5 is answered in the affirmative is the 2nd defen-dant liable ?
If issue 6 is answered in the affirmative to what damages-is the plaintiff entitled (a) as Administrator of theEstate of tho late Ravindran, (b) personally against thesecond defendant ? ■
Objection was taken at the trial to the word “ Agent ” in issue 5 by learnedCrown Counsel and in consequence these words were deleted from thatissue. The proceedings do not show that the word “ servant ” was sub-stituted in its place as was obviously intended but issue 13 and the plead-ings framed by learned Crown Counsel make it clear that the case-proceeded to trial on this basis. Issue 13 is as follows :
“ Is the Crown liable in damages for the acts of negligence of itsservants ? ”.
In para 2 of the amended plaint the basis on which tho plaintiff seeksredress against the 2nd defendant is set out and is as follows :—
“ The 1st defendant was a servant of the Government of Ceylon :he was an engine driver and he drove train No. 589 within the scope ofhis employment on 5th April, 1951.”
and again para 26 is in the following terms :—'.
“ The Government of Ceylon as carriers by land are subject to tholiabilities in respect of negligence of its servants causing damage whilethey were carrying and acting for their master. ”
Even at this early stage Counsel appears to have appreciated that adistinction does not exist between a “ servant ” and an “ Agent
Among tho defences raised in the answer of the 2nd defendant the mostimportant one was that the Crown was not liable to be sued in tort inCeylon. The learned District Judge on the invitation of Counsel decidedto take up issue 13 and certain other issues relating to the constitution ofthe action as preliminary issues. After hearing argument the learned •Judge answered issue 13 in favour of the Crown and dismissed plaintiff’saction as against the 2nd defendant. It is against this finding that the .appeal has been preferred.
Issue 5.Issue 6.Issue 7.
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SE'TN’ETAJLBY', J.—Xadaraja v. The Attorney-General •
Ever since the decision in Colombo Electric Co. v. The A llomey-General1the law in regard to.the Liability of the Crown to be sued in tort has beenregarded as authoritatively settled. In that case the Supreme Courtafter reviewing all the earlier decisions came to the conclusion that byvirtue of the Royal Prerogative an action of tort is not maintainableagainst the Government of Ceylon and that even under the Roman DutchLaw there is no authority for the proposition that the Crown is liable tobe sued in tort..
The argument advanced in the appeal, however, was that the law inthis respect has undergone a change since the enactment in England ofthe Crown Proceedings Act in 1917. The argument proceeded on thefollowing lines :—
Under the Civil Law Ordinance (Cap. 66), Section 3, the law applicablein all questions or issues relating to Principals and Agents shall be “ thesame as would be administered in England iii'the like case, at the corres-ponding period, if such question or issue had arisen or had to be decidedin England ” ; the relationship of master and servant is the same asthat of Principal and Agent; the law applicable to the liabilities of themaster must therefore be the law administered in England at the corres-ponding period ; in consequence, since 1947 the Crown in Ceylon would beliable in the same way as in England for, the negligence of its servants.
We are indebted to learned Counsel for their exhaustn c and helpfularguments which have been of great assistance to us in arriving at a deci-sion'. The question that immediately arises for consideration is whetherthe liability of the master for the tortious acts of his servant arises fromsome principle relating to the Law of Agency or is it quite independentof any such principle ?■
Who then is an Agent ? For the purpose of a contract “Agency”has been defined to bo the relationship that exists when one man repre-sents another as being employed by him for the purpose of bringing himinto legal relations with a third. (Anson, 20th Ed. p. 3S6). Dealing withPrincipal and Agent, Salinond in his text book on the Law of Torts (9thEd.) Section 24 p. 86 observes :
“ Any person who authorises or procures a tort to be committed byanother is responsible for the tort as if he had committed it himself. . . . Principal and Agent therefore are jointlj' and severallyliable as joint wrong doers for any tort authorised by the formerand committed by the latter. ”
It will thus be seen that the relationship of Principal and Agent can not■only exist in regard to contracts but also in regard to torts. In regard ■to torts committed by an Agent not expressly authorised or subsequentlyratified by his Principal the general rule as stated by Salmond is as follows<P- SG) :
“ Speaking generally a Principal is liable only for those acts of hisAgent which ho actually authorises. He is not in general liable forunauthorised torts committed by the Agent in the. course of hisagency. ”
(1013) 16 X. L. R. 161.
SrXXETAifBV, J.—Xadaraja v. The Attorney-General
139
MePCerron dealing with the same subject puts it in this way (4th Ed.p. 119/120) :*.'
“But for the unauthorised act of an Agent, i.e., a person havingexpress or implied authority to represent or act on behalf of anotherperson who is called his Principal, the Principal is not in generalresponsible, even though the act was committed by the Agent in the-execution of his employment. To this rule there are two chief ex-ceptions. The .first is where the act complained of was committed .jythe Agent acting in his capacity of Agent. …
The second exception is where the relationship of Principal and Agentis that of Master and Servant. ”
The subject is dealt with exhaustively and with much clarity in theRestatement of the Law of Agency published by the American LawInstitute. Under the heading “ Torts of Agents who are not Servants”(Vol 1, Section 250, P559) the law with special reference to physical injuryis stated as follows :■
'“ Except as stated in Section 251, a principal is not liable for physical
harm caused by the negligent physical conduct of an Agent, who is• not a servant, during the performance of the principal’s business unlessthe act was done in the manner directed or authorised by the principalor the result was one intended or authorised by the principal. ”
Section 251 deals with cases where the principal becomes liable for theacts of an Agent which the principal is under a duty to perform with care,examples of which are given under section 214, p. 472. In this casewe are only concerned with physical harm to another and the law is thusstated : the principal is liable if the agent is negligent in performing “anact which the Principal is under a duty to have performed with care”.
All the text writers, may be somewhat loosely, deal with the Rightsand Liabilities of Master and Servant under the heading of “ Principaland Agent ”. Bowstead, however, in his book on Agency does not.devote any particular chapter to this subject. Salmond for instance says :'
“ If we use the term Agent to mean any person employed to do workfor another, we may say that Agents are of two kinds distinguishable as
servants and (2) independent contractors. ”
(9th Ed. p. 89)
In the Restatement of the Law of Agency the learned authors comment asfollows (p. 11) :■.
‘“ A master is a species of principal and a servant is a species of agent
….. The word ‘ servant ’ is used in contrast with ‘ Independent
Contractor ’, a term which includes all persons who contract to do some-thing for another and who are not servants with respect thereto. ”
Regarding the servant as a species of agent the next question thatarises is whether the master’s liability for his servant’s torts is the outcomeof the relationship between Principal and Agent which would in that event
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SINifETAilBIT, J.—xfadaraja v. The Attomey-Qeneral
be common to all types of agency or is it something special and peculiar-to the relationship of master and servant quite independent of the prin-ciples governing the Law of Agency. I may be excused for repeatingthat on the answer to this question would depend the question of whether-tlie law now prevailing in England in regard to the liabilities of the.Crown to be sued in tort obtains in Ceylon or not.
If the liability of the master for the tortious acts of his servants can.be traced to some principle governing the Law of Agency the English lawit seems to me would apply even to such incidental matters as the correct-Court in which the action should be brought or the correct party to bosued. I am confirmed in this view by the decision of our Courts in regardto matters of a similar nature, e.g., it has been held that recourse may be-liad to the principles of English Law to decide the correct Forum inSvhichan action for the recovery of the purchase price on a contract of sale ofgoods should be brought. Section 58 of the Sale of Goods Ordinance^provides for the application of the English Law in regard to matters onwhich the Ordinance itself is silent. In Dias v. Gonsianline 1 the SupremoCourt took the view that an action for the recovery of the purchase price-on a contract for the sale of goods could be brought in the Court within,whose jurisdiction the creditor resides. According to English Law the-Debtor should seek out the Creditor and pay while under the RomanDutch Law the converse is the case. Similar considerations influenced,our Courts in deciding that the absence of consideration invalidated apromissory note though under the Roman Dutch Law causa would have-been sufficient to render a promise valid.
In regard to the law governing the Rights and Liabilities of Master and.Servant in relation to third parties it would, I think, be correct to say thatour Courts have adopted the English doctrine of employers ’ liability.McKerron in his book on the Law of Delict explains the furthest limit to-which the Roman Dutch Law went in the following words (Section 34,p. 121, 4th Ed.) :
“ In Roman Law a person might in certain circumstances be held,liable for the wrongs of his servants, but, except where the servant was-a slave there was no general principle of liability. The Roman Dutch' v-riters speak with uncertain voice on the subject. Some of them denythe existence of any general rule of liability ; others would appear to-affirm it. But it would seem that the furthest that the authorities go-is to hold the master liable for the vrrongs committed by his servants-{famitli) in the course of carrying out some duty or service specificallyentrusted to them. ”
What then is the principle or principles.on winch the liability of the master-
for the torts of his servant is based. In the Restatement of the Law of
Agency the learned authors observe as follows :
“ The liability of a master for the torts of his servant is greater inextent than the liability of a principal for the torts of his agent who is-not a servant. ” (pp. 10 and 11.)
{J9IS) 20 jST. L. Ji. 33S.
SlTfiSTETAMBY, .T.—Xadaraja v. The Attorney-General141
With the advance of civilisation, with new inventions ancl labour savingdevices, and with a new outlook on the obligations of one class or sectionof society to another, it is but natural that the law which was once con-sidered sufficient to meet all needs should with the passage of time be' found wanting. It had according^ to be modified and extended to meetnew situations as they arose. There thus developed in the relationshipof master and servant a set of obligations which was peculiar to thatrelationship which cannot be traced to any previously recognised principleof law. The master was held liable for all wrongs committed by theservant within the scope of his employment. Even the meaning of theterm " within the scope of his employment ” has from time to time beenextended to cover new concepts and new ideas. These had no relation-ship to the Law of Agency' though from time to time various attemptshave been made to explain them by bringing them within one or otherrecognised legal principle. Mc-Jverron in dealing with this questionstates (p. 122) :
“ Many reasons for the rule have been advanced. Perhaps the bestexplanation is given by Pollock. * I am answerable ’ he says ‘ forthe wrongs of my servant or agent, not because he is authorised by meor personally represents me but because he is about my affairs, aiidI am bound to see that my affairs are conducted with due regard to thesafety of others. ’ But this proposition cannot be accepted withoutconsiderable qualification. The truth would appear to be that thedoctrine of employers’ liability cannot be justified on purely logicalgrounds, but must be regarded in the ultimate analysis as based uponconsideration of social policy. ”
The later and more recent decisions of the English Courts make it reason-ably clear that the liability of the master for the torts of his servants isbased upon the peculiar relation that exists between master and servantand does not come within any recognised principle of the Law of Agency.Winfield in Ids textbook on the Law of Torts traces the history of tins" particular instance of vicarious liability (pp. 137 & 138, 6th Ed.). Ac-cording to him in the early Norman period liability of the master existedonly when there was a command or consent on the part of the master tothe servant’s wrong. Subsequently the need for an express commandgave way to a rule that the master was liable if an implicit command couldbe inferred from the general authority he had given to the servant.
“ Trade ” says Winfield “ has become far too complicated to allow theparticular command theory, which suited the old simple relation of masterand servant well enough, to cover persons like factors or agents who werenot accustomed to take their orders like a slave or a private soldier.
Of course this does not explain why the master should be liable at all,and for the rule various reasons—all unconvincing—were given by thelawyersDuring the 19th century the Implied Command
theory was displaced by the ” scope of employment ” theory winch isnow the rule. Winfield continues": -••.
“ A scientific reason for the rule is- hard to find. It seems to bebased on a mixture of ideas—the master can usually pay while the
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STJOTETAMRY, J.—Kodnraja v. The Attorney-General
servant cannot; that a master must conduct his business willt dueregal'd to the safety of oi hers ; that the master profits from tho servant’semployment and by employing the servant has set the whole thing inmotion. ”_
« .
The basis of the masters’ liability came up recently for consideration beforetho Court of Appeal in Broom v. Morgan '. If the liability was“ vicarious ” then the master’s liability would arise only if the servanthimself was liable to the third party. In this particular ease the plaintiffand her husband were emploj'ed by the defendant to work in a beer andwine house. Plaintiff was injured through the negligence of herhusband—a wife cannot sue her husband in tort under the English Pro-cedural Lav—and it was argued that where tho, servant, in this case thehusband, was immune no vicarious liability can arise. The Court ofAjipcal held that despite the legal immunity of the husband plaintiffwas liable, and Denning, L. J. made the following observations :
“ I am aware that the employer’s liability for the acts of Iris servanthas often been said to be a vicarious liability but I do not so regard it… The reason for the master’s liability is not the economic
reason that the employer usually has money and the servant hasnot. It is the sound normal reason that the servant is doing themaster’s business and it is the duty of the master to scethathisbusinessis properly and carefully done. ”.
The judgment of Denning, D..J., it will be seen proceeded on the footingthat there was a breach on the part of the master of the duty which thelaw imposes on him to take care that his business is conducted withoutnegligence. There was no question of an express or implicit authoritycoming in and the servant’s act was regarded as the master’s act.Denning, L.J. continued :'
“ You may describe it as a vicarious act if you please but not ns avicarious liability. My conclusion in this part of the case is that themaster’s liability for the negligence of the servant is not a vicariousliability but a liability of the master himself owing to his failure to seethat his work was properly done. ”
Though the observations of Lord Justice Denning may be regarded asobiter they nevertheless set out a basis on which the master’s liability forthe act of his servant can be explained. With the views of this learnedJudge I do with great respect agree.■'
I am therefore of the opinion that the liability of tho master for thenegligent act of his servant is not based on any principle relating to theLaw of Agency but rather to the special relationship existing betweenmaster and servant which makes the act of the servant the act of tho •master provided it is done within the scope of his employment.
I shall now deal with one other proposition of law which learned Counselfor the appellant advanced though with some diffidence in support ofhis .appeal. He contended that the Crown was indivisible, that there is
> (J9S3) 1 A. E. E. S49.'
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SINKETAMBY, J.—K a da raja v. The Attorney-General
only one Queen, and if the immunity of the Crown to be sued in torfcceases to exist in England it aiso ceases to exist in every other part of herdomain. In support he relied on the case reported in 1905 A. C. p. 551. 1'In that case it was held that where a Colonial Government had entered intoa contract with the respondent for military service any money paid bythe Imperial Government was in part discharge of the moneys due underthe contract. The judgment proceeded on the basis that the contractof service was with the Crown and payment whether by the MotherCountry or the colony was payment on behalf of the Crown. It must beremembered that this decision was as far back as 1905 when the conceptof the Commonwealth of Nations was unknown and.also legislation forthe colonies was still in the hands of the Imperial Government. Theposition of a Dominion Government vis-a-vis the Imperial Governmentis entirely different to that of a Colonial Government.
As Paton puts it (Textbook of Jurisprudence, p. 2S1) :
" The principle that the Crown is ono and indivisible is very. important and significant from a political point of view. Put whenstated as a legal principle it tends to dissolve into verbally impressivemysticism. ”.
The Crown in its various dominions acts through its Ministers and ineach unit governs through a separate Dominion Parliament. Claims byone Dominion against another are not unknown. Tiiis would not bopossible if the old concept of the Queen being unitary and indivisible iscarried to its logical conclusion for then the Queen caimot make a claimagainst herself. As Paton puts it :.
“ In spite of historical theory the Crown is now a symbol of freeassociation of nations each with an individual and internationalpersonality. ”
It follows that the Queen can in one dominion forego or place restrictionsby Act of Parliament on her rights and Prerogatives without such rightor prerogative being in any way affected in another dominion. Thatfact therefore that in England by virtue of the Crown Proceedings Actthe Queen has foregone the immunity of being sued in tort should not inany way affect her privileges elsewhere. Indeed the Act itself specifically 'provides that it shall only apply to the United Kingdom and notto Northern Ireland, and section 40 (2) provides that nothing in this Actshall apply to the Crown except in respect of Her Majesty’s Governmentin the United Kingdom. Quite apart from other considerations byvirtue of the specific provisions in the Act itself it cannot be possiblymade to apply to the dominions merely by reason of- the theory, whichcan no longer be held to be applicable, of the unity and indivisibility ofthe Crown. – •.’.
.There is yet another and more important limitation imposed by theCiown Proceedings Act. .Section 2 (1) (a) refers to the Crown’s liabilityin respect of Agents and Servants—wo are in this case concerned with i
i (1006) A. G. 651.
144•SINNETAMBY, J.—Nadaraja v. The Attorney-General
servants. Section 2 (6) restricts the Crown’s liability to acts of an “ officerof the Crown ” who is paid out of the “ Consohdated Fund of .the UnitedKingdom, monies provided by Parliament, the Road Fund or any otherFund certified by the Treasury. Section 38 (2) defines “ officer of the#Crown ” to include any servant of the Crown. It will thus be seen thatany servant of the Crown who is not paid out of the United KingdomFund, &c., does not come within the definition, and for torts committedby them the Crown would not he liable.
I am therefore of the opinion that the Crown Proceedings Act has inno way changed the law' in Ceylon in regard to the liability of the Crownto be sued in tort. The judgment of the learned District Judge isaffirmed and the appeal dismissed with costs.
Gtjnasekaka, J.—I agree.
Apcal ilistnisscd.