Ilovepdf Merged

THE DUTY IN CASES OF NERVOUS SHOCK.
By N. LANDAU.
The House of Lords in Donoghue v. Stevenson 1 placed the law relating
to negligence on a sound and rational basis, one sufficient to support
a development which would keep pace with the exigeneies of a dynamic
and complex civilization. Prior to that case it was only possible to
disoover when a duty to take care-the essential element in the tort of
negligence--existed by tabulating the various relationships in which the
courts, in the course of litigation, had actually held such a duty to arise.
From this it must not be concluded that the law was incapable of expansion.
It was always possible to argue by analogy with a previous decision that
in a new situation a duty of care waS owed to the plaintiff; but this was
an unscientific and inadequate foundation on which to place a tort which,
from the oircumstances of modern life, must be among the most important.
Hence the legal profession, with barely a dissentient, concurred when
Lord Atkin formulated his now famous and oft-quoted principle that I
owe 8 duty of care to those persons "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."1l To-day, when a doubt arises as to whether
a duty of care is owed, the court applies this criterion to the relevant facts.
It is not surprising, therefore, that Ohester v. Waverley Oorporation,S the
latest of the nervous shock cases, should have turned largely on the results
of such applioation.
The 1acts were these. A deep trench, which had been excavated
by the defendant council in a public street, became filled with water.
The trench was left unattended and protected only by a railing under
which young children oould easily pass. The plaintiff's son, aged seven
years, went out to play in the street, and, on his failing to return, the
plaintiff went to search for him. The search, in which other persons
took part, lasted for some hours. The plaintiff was present while, for
about half-an-hour, search was made in the water-filled trench, and when
the body of her son was recovered therefrom. As a result of these
experiences, she sustained a severe shock, and her health was impaired.
She sued the defendant oouncil to recover damages in respect of the injury
to her health so caused.
That physical illness resulting from nervous shock is a form of damage
which our law now recognizes was not disputed by any of the four judges
comprising the Court.4 Counsel for the respondents, the Waverley Cor-
poration, did indeed urge, on the authority of Victorian Railways Oommis-
sioners v. Ooultas,5 that damage consisting of mental or nervous shock is
too remote to found an action of negligence, but the majority of the Court,
presumably because they were able to dispose of the action on another
ground, did not advert to this argument. It is, however, a fair inference
from the form in which their judgment<i were couched, !loth in the instant
case and in Bunyan v . .Jordan, 6 that they would not regard Ooultas's case
1. [1932] A.C. 562.
2. ibid, at p. 580.
3. 62C.L.R.1. On appeal from the Supreme Court of New South Wales reported in 38 S.R. (N.S.W.)
603.
4. Latham C.J., Rich, Starke and Evatt JJ.
5. (18SS!. 13 App. Cas. 222.
6. 57 C...... R. 1.
139
140 RES JUDICATAE
as an insurmountable obstacle to the success of a claim brought in respect

of nervous shock. Evatt J. alone, grappled with that decision and, while
confessing its authority, managed by acute reasoning, to avoid its effect.
The plaintiff in Coultas's case, he said, was denied a remedy because the
Privy Council regarded" mere sudden terror unaccompanied by any actual
physical injury" as being too remote. Whether shock to the nerves
causes "actual physical injury" must always be a question of fact.
Fifty years ago it was possible to assume that it did not. To-day, with a
more complete knowledge of neurology, we know that terror may produce
nervous shock which manifests itself in actual physical injury, for which
the law has always awarded damages. Hence Coultas's case is no bar to
the plaintiff recovering in the instant case. This appears a very fair
interpretation of Coultas's case, and certainly affords a more satisfactory
means of avoiding its unfortunate consequences than that adopted.. by
the Ontario Court of Appeal. That Court, in Negrov. Pietro's Bread CO.,7
refused to follow Coultas's case because, it said, a decision of the Privy
Council is only binding on the courts of the Colony or Dominion from
which the appeal is brought. 8 Such an astonishing conclusion would
never commend itself to an Australian court.
But the plaintiff still had to face the main obstacle to the success of
her action: could she establish that this duty not to cause injury by
shocking the feelings was owed to her by the Corporation 1 It was here
that Lord Atkin's principle was made the crucial test. All four judges
stated it, and applied it; three, Latham C.J., Rich and Starke JJ., held
that in the circumstances the defendants did not owe the duty to the
plaintiff; one, Evatt J., thought otherwise. The plaintiff therefore failed
in her action.
Latham C.J. said: 9 "In my opinion (to apply the phraseology which
I have quoted from the Polemis case and Donoghue v. Stevenson) it cannot
be said that such damage (that is, nervous shock) resulting from a mother
seeing the dead body of her child should be regarded as 'within the
reasonable anticipation of the defendant.' 'A reasonable person would
not foresee' that the negligence of the defendant towards the child would
, so affect' a mother. A reasonable person would not antecedently expect
that such a result would ensue." Starke J. spoke in similar strain. IO
It is submitted with respect, that such statements fail to convince.
Is it not rather a dogmatic assertion to make, that no reasonable man
would foresee that by leaving a water-filled trench in a street relatively
unguarded, a child may not fall into it and be drowned, and that his
mother, assisting the rescuers, may not suffer severe nervous shock on
seeing his dead body recovered from the water 1 Evatt J. did not believe
that such a train of events was beyond the foresight of the reasonable man.
" Let us apply this criterion" (i.e., Lord Atkin's principle), he said,
" to a reasonable person in the situation of the defendant council. Such
a person would foresee that, by leaving the trench inadequately guarded,
it would probably become, especially when filled with water and provided
with sand, a very attractive place to children in the neighbourhood of
7. (1933) O.R. 112; [1933)1 D.L.R. 490.
8. A discussion 01 this case appears in Canadian Bar Review, vol. XI, p. 287.
9. at p. 10.
10. at p. 13.
THE DUTY IN CASES OF NERVOUS SHOCK 141
the trench. He would also foresee that, having regard to the unfortunate
but notorious fact that children of workpeople are frequently compelled to
play in the streets, and also to the fact that the water was in the trench,
the special menace of the place would be that small children might fall
in and be drowned. He would also foresee when ' directing his mind ' to
the dangers that, if the child got into the zone of the special danger, his
parents (and others) would resort to the place either to seek for the child
or, upon hearing his cries, to rescue him from danger, and that, in so doing,
they might themselves sustain physical injury or illness caused by nervous
shock and distress." 11
This conflict of judicial opinion as to the extent of a reasonable man's
foresight raises an interesting question: one which, however, in the
present state of the law must be of only speculative value. If the views
of the jury represent those of the" reasonable man," and if it is the jury's
task to decide whether a duty of care has been broken, i.e., whether the
defendant has behaved otherwise than as a reasonable man in the circum-
stances, would it not be practically and logically more sound to allow the
jury to decide in addition the preliminary question of whether the duty
exists, i.e., whether a reasonable man should foresee that his acts or
omissions are likely to result in injury to the plaintiff. As Professor
Winfield has pointed out,12 this would, in effect, mean that one inquiry
would be addressed to the jury, viz. "Has the defendant behaved as
would a reasonably careful man in similar circumstances 1" We should
not then have learned justices divided over the question as to what" the
reasonable man" should foresee; the jury, speaking for" the reasonable
man" himself, would supply an authentic answer.
Evatt J.'s view of the range of the duty in nervous shock cases is
buttressed by the decisions in two recent lines of cases, namely, Hambrook
v. Stokes Brothers13 and Owens v. Liverpool Corporation 14 and the" rescue"
cases.
Hambrook v. Stokes decided two things :-(1) that the law definitely
recognizes a duty not to cause physical injury to a person by shocking
his feelings, (2) that this duty may be violated when the plaintiff is
put in fear, not for his own safety, but for that of other persons.
Professor Goodhart thinks that the former is the more significant feature
of the case. Thus he writes: "The real question in issue in this case
was not as to the probable or improbable consequences of an admitted
breach of duty to use care, but as to the extent of the duty itself. The
question was: 'Is there a duty of care not to injure a person by shocking
his feelings and what shocks can be held to be material.' "16 It is sub-
mitted, however, that Hambrook v. Stokes is less significant in this respect,
for the law has long recognized a duty not to cause physical injury by
intentionally shocking a person's feelings,16 and therefore it was inevitable
that the stage would be reached when the law would give compensation
for shock carelessly inflicted. Indeed, the stage had been reached nearly
a quarter of a century before Hambrook v. Stokes, with the Court of
11. at p. 23. .
12. Winfleld, Duty in Tortious Negligence in Col. Law Review, vo!. XXXIV, at p. 58.
13. [1925] 1 K.B. 141.
14. [1939]1 K.B. 394.
15. Goodhart, Essays in Jurisprudence, p. 116.
16. E.g., it was so laid down in Wilkinson v. D()UJrtton, [1897] 2 Q.B. 57.
142 RES JUDICATAE
Appeal's decision in Dulieu v. White & Sons.l7 The headnote of that

case reads: "Damages which result by any actual impact may be recover-
able in an action for negligence if physical injury has been caused to the
plaintiff. "
On the other hand, note the limitation to this rule laid down by
Kennedy L.J.18: "A has, I conceive, no legal duty not to shock B's
nerves by the exhibition of negligence towards C, or towards the property
of B and C." In no case prior to Hambrook v. Stokes had a plaintiff been
able to recover for nervous shock caused by the infliction of injury on
a third person. This represents the advance made in that case. The
attitude adopted by previous courts in similar cases was to regard the
plaintiff as suing for damages resulting from the breach of a duty owed,
not to him, but to a third party, and hence,.on the principle of Winter-
bottom v. Wright,19 as being without a remedy. In Hambrook v. Stokes,
however, the nature of the action was clearly perceived; the plaintiff was
suing for the breach of an independent duty owed to herself. 20 The same
act or omission may constitute a breach of two distinct duties owed to
two different persons. The defendant owed the duty to the plaintiff
because she belonged to a class of persons who would be so closely and
directly affected by his omission to adequately secure his lorry that he
ought reasonably to have had them within his oontemplation as being so
affected when directing his mind to the omission. So understood, Ham-
brook v. Stokes offers opportunity for a wide extension of liability, for a
bystander, as well as the mother of the injured child, may well be within
the class. Atkin L.J.21 expressly recognized this and Evatt J. WIIoB only
stating the logical implications of this approach, when he. said that a
bystander may be able to recover for illness due to shock when the child
itself is not injured, but has a narrow escape. 22
In Owens v. Liverpool Oorporation,23 the Court of Appeal directed
this principle of liability along a new path when it permitted recovery
for nervous shock caused by a primary display of negligence, not towards
another person, but towards an inanimate object, which was not even
the property of the plaintiffs. Moreover, only one of the four plaintiffs
actually witnessed this primary display of negligence, the other three
sustained nervous shock upon witnessing the results thereof. Yet they
were awarded damages. This decision, therefore, definitely suggests
that the limits of liability should not. be fixed where the majority of the
High Court in Ohester's case were prepared to fix it, namely, where the
nervous shock is suffered upon witnessing the actual accident, in contra-
distinction with where it is experienced upon seeing the results of the
accident at some time after its occurrence. The Court of Appeal, in
effect, held that liability should not be delimited in advanoe at some
arbitrary point but that the range of duty in each relationship should be
decided according to the extent of the reasonable man's foresight.
17. [1901] 2 R.B. 669.
18. ibid, at p. 675.
Ill. (1842),10 M. & W. 109.
20. vide, e.g., [1925] 1 R.B. 141, at p. 151, per Banks L.J.
21. ibid, at p. 157.
22. OhesteT v. Waverley Oarporation, 62 C.L.R. I, at. pp. 31-2.
23. [1939]1 R.B. 394.
THE DUTY IN CASES OF NERVOUS SHOCK 143
The "rescue" cases, on analysis, similarly afford an illustration of

the application of Lord Atkin's principle to the particular relationship
involved. The defendant owes a duty not to expose A to injury. He
also owes a separate duty to B, who attempts to rescue A from his
imminent peril, because, as a reasonable man, he should foresee, when
directing his mind to the act or omission that exposes A to injury, that
other persons may attempt to rescue A from his danger .. Professor
Goodhart, in an article which was referred to by Greer L.J. in Haynes
v. Harwood,24 well sums up the position: "The right of the rescuer is,
therefore, an independent right, as it is not derived from that of the
rescued. There is a duty of care to the rescuer because the wrong-
doer ought reasonably to have had them in contemplation as being so
affected by his act. The Courts of America are unanimous in their agree-
ment that such altruistic and courageous acts of rescue are not only
foreseeable but probable."25 Thus in the" rescue" cases, Lord Atkin's
principle 26 has done good service in enabling legal precepts to be brought
into closer conformity with the moral sense of the community, and it
could similarly have been employed, without any undue strain, as the
basis for recovery by Mrs. Chester, whom most people must feel was
entitled, at least, to the expenses incurred through the illness sustained
as a result of having to undergo the terrible anxiety of waiting for the
water-filled trench to reveal its secret, and then to experience the hideous
shock when that secret was finally revealed.
One can easily appreciate the difficulty which beset the learned
justices in Ohester's case in determining the limits of the duty in these
nervous shock cases. If we grant this plaintiff a remedy, the majority
intimated, where are we to draw the line. We shall have to permit
every person to recover who chances upon the scene of an accident and
receives a shock in consequence of what he sees. We shall not even
logically be able to stop here. We shall be compelled to make a negligent
motorist who causes great facial disfigurement to a pedestrian pay damages
to every person who throughout the pedestrian's life experiences shock
on seeing his disfigurement. The law admits of only one answer to this
argument. The line must be drawn at the point, and only at the point,
where the consequences of an act pass beyond the foresight of "the
reasonable man." The duty in nervous shock cases, as in all other cases
sounding in negligence, is commensurate with the range of the average
reasonable man's foresight. If this would embrace some of the conse-
quences mentioned above, then the defendant should pay for these conse-
quences. There is nothing unjust or inexpedient in this. No principle
of public policy would be violated, for the purpose of the law of torts is
to award compensation, and, as between the careless person and his
victim, is it not preferable to make the former bear the loss? Nor would
any moral principle be transgressed for the defendant is only made
responsible for those consequences which he foresaw or should have fore-
seen, and which, therefore, he had the opportunity to avoid. It should
further be noted that the law does not award damages in respect of mere
24. [1935]1 R.B. 146, at p. 156.
25. Rescue and Voluntary Assumption of Risk, in Cambridge Law Journal, vol. V, 192, at p. 197.
26. ~!~!~880r Goodhart,jn a footnote on the page qnoted above, remarks that this principle is apposite
144 RES JUDICATAE
mental distress or anxiety "unaccompanied by any actual physical

injury"; therefore the occasions when legally recognized nervous shock
will be caused in such circumstances as those given must be very few
indeed. Rich J.'s concern for defendants,27 appears, with respect, to
have been rather mislllaced when one recalls that the reason why Mrs.
Chester brought her action of negligence was because our common law lS
denies an action for solatium for the death of a child.
No doubt opinion will often be divided as to the extent of the" reason-
able man's" foresight; but this is a difficulty inherent in the very nature
of the standard which the law has selected as the basis of its learning in
negligence, and is not peculiar to the application of that standard in cases
of nervous shock. In such cases, it may be suggested in conclusion, the
court should approach the issue free from any intellectual qualms as to
the implications of its decision, and confine itself solely to the application
of the standard to the particular facts before it. After all our common
law is essentially empirical.
27. Ohester 11. Waverley OIYfPOI'atitm (supra), at p. 12.

28. Lord Campbell's Act (Wrongs Act, 1928, Part m) has not yet been adopted In New South Wales.
6/12/2015 Bourhill v Young [1942] UKHL 5 (05 August 1942)
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Cite as: [1942] UKHL 5, [1943] AC 92
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JISCBAILII_CASE_TORT
Die Mercurii, 5° Augusti, 1942
Parliamentary Archives,
HL/PO/JU/4/3/971
http://www.bailii.org/uk/cases/UKHL/1942/5.html 1/36
Lord
Thanker
ton
Lord
Russell of
Killowen
Lord
Macmillan
Lord
Wright
Lord
Porter
HAY OR BOURHILL
v.
YOUNG
Lord Thankerton
MY LORDS,
The Appellant is pursuer in an action of reparation, in which
she claims damages from the Respondent as executordative of the
late John Young, in respect of injuries alleged to have been sus
tained by her owing to the fault of John Young, on the occasion
of a collision between a motorcycle which the latter was riding and
a motor car on the nth October, 1938, which resulted in the death
of John Young, to whom I will hereafter refer as the cyclist.
After a proof, Lord Robertson assoilzied the Respondent on the
ground that the cyclist had not been guilty of any breach of duty
to the Appellant, and this decision was affirmed by the Second
Division, Lord Justice Clerk Aitchison dissenting.
The facts as to the occurrence of the collision and its relation to
the Appellant are comparatively simple. The Appellant, who is a
fishwife, was a passenger on a tramway car which was proceeding
in the direction of Colinton along the Colinton Road, which may be
taken as a southwesterly direction, and which stopped at a
stoppingplace at a short distance before Colinton Road is joined
at right angles by Glenlockhart Road from the southeast, that is,
on the near side of the tramcar. The Appellant alighted, and went
round the near side and front of the tramcar, in order to lift her
fishbasket from the offside of the driver's platform. Meantime,
the cyclist, travelling in the same direction as the tramcar, had
come up and, as the Appellant was getting her basket, he
passed on the near side of the tramcar and, when mostly
across the opening of Glenlockhart Road, his cycle collided
with a motor car, which had been travelling in the opposite
direction, but had turned across the path of the cycle in
order to enter Glenlockhart Road. The cyclist, who was
held by the Lord Ordinary to have been travelling at an
excessive speed, was thrown on to the street and sustained injuries
from which he died. There is no doubt that the Appellant saw and
heard nothing of the cyclist until the sound of the noise created by
the impact of the two vehicles reached her senses. At that moment
she had her back to the driver's platform and the driver was assist
ing to get the basket on to her back and the broad leather strap
on to her forehead. It may be taken that the distance between the
Appellant and the point of impact was between 45 and 50 feet. After
the cyclist's body had been removed, the Appellant approached
and saw the blood left on the roadway. The injuries alleged to
have been sustained by the Appellant are set out in condescen
dence 4 of the record, as follows: —
" Condescendence 4.—As an immediate result of the
' violent collision and the extreme shock of the occurrence
" in the circumstances explained, the pursuer wrenched and
" injured her back and was thrown into a state of terror
" and sustained a very severe shock to her nervous system.
"Explained that the Pursuer's terror did not involve any
" element of reasonable fear of immediate bodily injury to
" herself. The pursuer was about eight months pregnant at
"the time, and gave birth to a child on 18th November,
' 1938, which was stillborn owing to the injuries sustained
" by the pursuer."
The words italicised were inserted by amendment in the Inner
House, after the Lord Ordinary had dismissed the action as
irrelevant, and, as the result of the reclaiming motion, the case
was sent to proof before answer.
2 [2]
After the proof, the Lord Ordinary expressed his view that
while the Appellant had sustained a nervous shock as the result of
hearing the noise of the collision, which disabled her from carrying
on her business for some time, she had failed to prove either that
the death of the child in utero or the injury to her back resulted
from the shock or her immediate reaction to the fright of the event.
The Respondent does not dispute the finding of the Lord Ordinary
that the Appellant had sustained a nervous shock, which affected
her business, and this finding is admittedly sufficient to raise the
question of liability. At the hearing of the Appeal your Lordships
decided to have the argument on liability completed on both sides,
before considering the other injuries alleged to have resulted.
While both the Lord Ordinary and Lord Jamieson refer to an
apparent inconsistency between the evidence given by the Appel
lant at the trial, and the averment added by amendment that the
Appellant's terror did not involve any element of reasonable fear
of immediate bodily injury to herself, the argument of the Appel
lant before this House was conducted on the footing that the added
averment was correct; indeed, the Appellant's argument was that
the shock ensued without any functioning of the brain at all. I am
content to consider the question of liability on this footing.
It is clear that, in the law of Scotland, the present action can only
be based on negligence, and " it is necessary for the pursuer in
" such an action to shew there was a duty owed to him by the
" defenders, because a man cannot be charged with negligence if
" he has no obligation to exercise diligence "; per Lord Kinnear in
Kemp & Dougall v. Darngavil Coal Co. Ltd., 1909 S.C. 1314, at
page 1319. I may further adopt the words of Lord Johnston in
the same case, at page 1327, " the obligee in such a duty must be a
" person or of a class definitely ascertained, and so related by
" the circumstances to the obligor that the obligor is bound, in the
" exercise of ordinary sense, to regard his interest and his safety.
" Only the relation must not be too remote, for remoteness must be
" held as a general limitation of the doctrine."
My Lords, I doubt whether, in view of the infinite variation of
circumstances which may exist, it is possible or profitable to lay
down any hard and fast principle, beyond the test of remoteness
as applied to the particular case. The Lord Justice Clerk, who
dissented, accepted the test of proximity, although it is a little
difficult to follow how he made his conclusion satisfy this test. In
the observations that I have to make, I shall confine myself to the
question of the range of duty of a motor cyclist on the public road
towards other passengers on the road; clearly this duty is to
drive the cycle with such reasonable care as will avoid the risk of
injury to such persons as he can reasonably foresee might be
injured by failure to exercise such reasonable care. It is now
settled that such injury includes injury by shock, although no
direct physical impact or lesion occurs. If then the test of prox
imity or remoteness is to be applied, I am of opinion that such a
test involves that the injury must be within that which the cyclist
ought to have reasonably contemplated as the area of potential
danger which would arise as the result of his negligence, and the
question in the present case is whether the .Appellant was within
that area. I am clearly of opinion that she was not, for the follow
ing reasons: —
Although admittedly going at an excessive speed, the cyclist had
his machine under his control, and this at once distinguishes this
case from such cases as those where the motor has been left stand
ing unoccupied and insufficiently braked, and has started off on an
uncontrolled career. At the time of the collision with the motor,
he was well past the tramcar, and the Appellant was not within the
range of his vision, let alone that the tramcar obstructed any view
of her. The risk of the bicycle ricochetting and hitting the Appel
[3] 3
lant, or of flying glass hitting her, in her position at the time, was
so remote, in my opinion, that the cyclist could not reasonably be
held bound to have contemplated it, and I differ from the Lord
Justice Clerk on this point, but, as already stated, the Appellant's
case is not now based on any fear of such possibilities, but merely
on the sound of the collision. There is no suggestion that the
volume of the noise of the collision afforded any ground for argu
ment, and I am clearly of opinion that, in this case, the shock
resulting to the Appellant, situated as she was, was not within the
area of potential danger which the cyclist should reasonably have
had in view. In my opinion, none of the cases cited presents suffi
ciently analogous circumstances, such as should control the de
cision in the present case.
The dictum of Kennedy L.J. in Dulieu v. White & Sons, (1901)
2 K.B. 669, at p. 675, may well afford a useful test, in appropriate
cases, of the area of potential danger, but I am not prepared to
accept it as a conclusive test in all cases. That dictum has received
considerable acceptance in Scottish cases. There may be circum
stances under which it should not be applied, and I prefer to treat
each case on its own facts as it arises, with assistance from cases in
which the facts are so analogous as to afford guidance.
It would not be right, however, in view of the attention paid to
them in argument and in the opinions of the learned Judges, not to
refer to three of the English decisions. In re Polemis and Furness
Withy & Co., (1921) 3 K.B. 560; in the Court of Appeal the issue
only related to the question of damages; Bankes L.J., at p. 571,
says, " What a defendant ought to have anticipated as a reason
" able man is material when the question is whether or not he was
" guilty of negligence, that is) of want of due care according to
" the circumstances. ... In the present case the arbitrators have
" found as a fact that the falling of the plank was due to the negli
" gence of the defendants' servants. The fire appears to me to have
"been directly caused by the falling of the plank. Under these
" circumstances I consider that it is immaterial that the causing of
" the spark by the falling of the plank could not have been reason
" ably anticipated." The case is therefore of no assistance here, and
I have no occasion to consider whether the principle so laid down
as to assessment of damages correctly states the law of England,
and, if so, whether the law of Scotland is the same. The same is
true of Hambrook v. Stokes Brothers, (1925) 1 K.B. 141, which was
the case of a motor lorry left at the top of a steep and narrow street
unattended, with the engine running, and without being properly
secured, with the consequence that the lorry started off by itself and
ran violently down the incline. My noble and learned friend Lord
Atkin, then Atkin L.J., at p. 156, says, " I agree that in the present
" case the plaintiff must show a breach of duty to her, but this she
" shows by the negligence of the defendants in the care of their lorry.
' I am clearly of opinion that the breach of duty to her is admitted
"in the pleadings." But there are certain obiter dicta on the
question of duty, which might be considered too wide, and I reserve
any opinion on them. The remaining case is Owens v. Liverpool
Corporation, (1939) I K.B. 394, in which the defendants' tramcar
collided with a hearse, damaged it and caused the coffin to be over

turned, and mourners were held entitled to recover damages for
mental shock, although there was no apprehension, or actual sight,
of injury to a human being. While each case must depend on its
own circumstances, I have difficulty in seeing that there was any
relationship of duty between the parties in that case.
I am therefore of opinion that the Appellant has failed to estab
lish that, at the time of the collision, the cyclist owed any duty to
her, and that the Appeal fails. I accordingly move that the Appeal
should be dismissed, that the judgment appealed from should be
affirmed, and that the Appellant should pay the Respondent's costs
of the Appeal.
21480 A 2
Lord
Thanker
ton
Lord
Russell of
Killowen
Lord
Macmillan
Lord
Wright
Lord
Porter
HAY OR BOURHILL
v
YOUNG
Lord Russell of Killowen

(READ BY LORD THANKERTON)
MY LORDS,
The pursuer seeks to recover a sum of £1,250 as reparation for
injuries alleged to have been sustained by her as the result of a
collision between a motorcycle and a motor car which occurred on
the 11th October, 1938, at the junction of Colinton Road and
Glenlockhart Road, Edinburgh.
The motorcycle was ridden by one John Young, who died as
a result of the collision, and the action was raised against James
Young, his father and executordative.
The foundation of the pursuer's claim is fault or negligence
alleged against John Young, an allegation which postulates a
breach by him of some duty owed by him to the pursuer. There
fore the first essential for the pursuer to establish is the existence
of a duty owed to her by John Young of which he committed a
breach.
As between John Young and the driver of the motor car, John
Young was admittedly negligent in that he was in breach of the
duty which he owed to him of not driving, while passing the
stationary tramcar, at such a speed as would prevent him from
pulling up in time to avoid a collision with any vehicle which might
come across the front of the tramcar from Colinton Road into
Glenlockhart Road. But it by no means follows that John Young
owed any duty to the pursuer. The facts relevant to this question
seem to me to be these: —The pursuer was not in any way physi
cally involved in the collision. She had been a passenger in the
tramcar which had come from the direction of the city and had
stopped some 15 or 16 yards short of the point of collision. She
was standing in the road on the offside of the tramcar (which was
at rest), with her back to the driver's platform. The front part
of the tramcar was between her and the colliding vehicles. She
was frightened by the noise of the collision, but she had no reason
able fear of immediate bodily injury to herself.
In considering whether a person owes to another a duty a
breach of which will render him liable to that other in damages for
negligence, it is material to consider what the defendant ought to
have contemplated as a reasonable man. This consideration may
play a double role. It is relevant in cases of admitted negligence
(where the duty and breach are admitted) to the question of
remoteness of damage, i.e., to the question of compensation, not to
culpability; but it is also relevant in testing the existence of a duty
as the foundation of the alleged negligence, i.e., to the question of
culpability, not to compensation.
It will be sufficient in this connection to cite two passages from
well known judgments. The first is from the judgment of Brett,
M.R. in Heaven v. Fender (11 Q.B.D. 503 at p. 509): —
" Whenever one person is by circumstances placed in such a position
with regard to another that every one of ordinary sense who did think
would at once recognize that if he did not use ordinary care and skill in
his own conduct with regard to those circumstances he would cause
danger of injury to the person or property of the other, a duty arises to
use ordinary care and skill to avoid such danger."
[5] 2
The second is from the speech of Lord Atkin in Donoghue v.
Stevenson (1932 A.C. 562 at p. 580): —
" You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who
then in law is my neighbour? The answer seems to be—persons who 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."
A man is not liable for negligence in the air; the liability only
arises "where there is a duty to take care and where failure in
" that duty has caused damage" (see per Lord Macmillan in
Donoghue v. Stevenson (at p. 618). In my opinion such a duty only
arises towards those individuals of whom it may be reasonably
anticipated that they will be affected by the act which constitutes
the alleged breach.
Can it be said that John Young could reasonably have antici
pated that a person, situated as was the pursuer, would be affected
by his proceeding towards Colinton at the speed at which he was
travelling ? I think not.
His road was clear of pedestrians; the pursuer was not within
his vision, but was standing behind the solid barrier of the tram
car; his speed in no way endangered her. In these circumstances
I am unable to see how he could reasonably anticipate that, if he
came into collision with a vehicle coming across the tramcar into
Glenlockhart Road, the resultant noise would cause physical injury
by shock to a person standing behind the tramcar. In my opinion
he owed no duty to the pursuer, and was therefore not guilty of any
negligence in relation to her.
The duty of the driver of a motor vehicle in a highway has often
been stated in general terms which if literally interpreted would
include persons to whom the driver would obviously owe no duty
at all, as for instance, persons using the highway but who having
passed the vehicle are well on their way in the opposite direction.
I think the true view was correctly expressed by Lord Jamieson
in the present case when he said: —" No doubt the duty of a driver
" is to use proper care not to cause injury to persons on the highway
" or in premises adjoining the highway, but it appears to me that
" his duty is limited to persons so placed {hat they may reasonably
" be expected to be injured by the omission to take such care."
The pursuer was not in my opinion " so placed "; or (to use the
language of Lord Mackay) she has " failed to bring herself into any
" relationship to the cyclist which infers a duty of care in driving
" owed by him towards her."
On this ground the Interlocutor appealed against should be
affirmed, and the Appeal dismissed.
My Lords, we heard a lengthy argument addressed to the ques
tions whether the case of Hambrook v. Stokes (1925, 1 K.B. 141)
was rightly decided; and if so whether the decision was in accord
ance with the law of Scotland, as expounded in the numerous

Scottish decisions cited to us. In the view which I have taken of
the present case it is unnecessary to express a final view upon these
questions. I will only say that, as at present advised, I see no
reason why the laws of the two countries should differ in this
respect, and I prefer the dissenting judgment of Sargant LJ. to the
decision of the majority in Hambrook v. Stokes. It was said
by counsel for the pursuer that it was impossible to affirm the
Interlocutor under appeal without disapproving of the decision in
Hambrook v. Stokes. I do not agree, for the simple reason that
in that case the negligence, which was the basis of the claim, was
admitted; whereas in the present case we are affirming because
John Young was guilty of no negligence in relation to the pursuer.
Lord
Thankei
ton
Lord
Russell of
Killowen
Lord
Macmillan
Lord
Wright
Lord
Porter
[6]
HAY OR BOURHILL
v.
YOUNG
Lord Macmillan
MY LORDS,
It is established that the pursuer in this action suffered in her
health and in her ability to do her work by reason of the shock
which she sustained when a motor cycle ridden by the deceased
John Young collided with a motor car in her vicinity. The question
for decision is whether the Defender as representing the late John
Young can be rendered accountable at law for what the pursuer
has suffered.
It is no longer necessary to consider whether the infliction of
what is called mental shock may constitute an actionable wrong.
The crude view that the law should take cognizance only of physical
injury resulting from actual impact has been discarded, and it is
now well recognised that an action will lie for injury by shock
sustained through the medium of the eye or the ear without direct
contact. The distinction between mental shock and bodily injury
was never a scientific one, for mental shock is presumably in all
cases the result of, or at least accompanied by, some physical dis
turbance in the sufferer's system. And a mental shock may have
consequences more serious than those resulting from physical im
pact. But in the case of mental shock there are elements of greater
subtlety than in the case of an ordinary physical injury and these
elements may give rise to debate as to the precise scope of legal
liability.
Your Lordships have here to deal with a common law action
founded on negligence. The pursuer's plea is that she has
" sustained loss, injury and damage through the fault of the said
" John Young " and that she is " entitled to reparation therefor out
" of his estate." She can recover damages only if she can show
that in relation to her the late John Young acted negligently; to
establish this she must show that he owed her a duty of care which
he failed to observe and that as a result of this failure in duty on
his part she suffered as she did. As was said by Lord Kinnear:
" A man cannot be charged with negligence if he has no obligation
" to exercise diligence." (Kemp and Dougall v. Darngavil Coal Co.,
Ltd., 1909 S.C. 1314 at p. 1319, quoted by Lord Thankerton in
Donoghue v. Stevenson [1932] A.C. 562 at p. 602.)
In dealing with a case of alleged negligence it is thus necessary
to ascertain first what in the circumstances was the duty of the
person alleged to be in fault and second to whom that duty was
owed.
The late John Young was riding a motor bicycle in an Edin
burgh street. What duty then was incumbent upon him? It
cannot be better or more succinctly put than it was by Lord
Jamieson in the Second Division in the present case when he said
that " the duty of a driver is to use proper care not to cause injury
" to persons on the highway or in premises adjoining the high
" way." Proper care connotes avoidance of excessive speed, keep
ing a good lookout, observing traffic rules and signals and so on.
Then to whom is the duty owed ? Again I quote and accept Lord
Jamieson's words: ' To persons so placed mat they may reason
" ably be expected to be injured by the omission to take such care."
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 reason
able and probable consequence injury to others and the duty is
owed to those to whom injury may reasonably and probably be
anticipated if the duty is not observed.
[7] 2
There is no absolute standard of what is reasonable and prob
able; it must depend on circumstances and must always be a
question of degree. In the present instance the late John Young
was clearly negligent in a question with the occupants of the motor
car with which his cycle collided. He was driving at an excessive
speed in a public thoroughfare and he ought to have foreseen that
he might consequently collide with any vehicle which he might
meet in his course, for such an occurrence may reasonably and
probably be expected to ensue from driving at a high speed in a
street. But can it be said that lie ought further to have foreseen that
his excessive speed, involving the possibility of collision with
another vehicle, might cause injury by shock to the pursuer? The
pursuer was not within his line of vision, for she was on the other
side of a tramway car which was standing Between him and her
when he passed and it was not until he had proceeded some dis
tance beyond her that he collided with the motor car. The pursuer
did not see the accident and she expressly admits that her " terror
" did not involve any element of reasonable fear of immediate
" bodily injury to herself." She was hot so placed that there was
any reasonable likelihood of her being affected by the deceased's
careless driving.
In these circumstances I am of opinion with the majority of
the learned Judges of the Second Division that the late John Young
was under no duty to the pursuer to foresee that his negligence in
driving at an excessive speed and consequently colliding with a
motor car might result in injury to the pursuer, for such a result
could not reasonably and probably be anticipated. He was there
fore not guilty of negligence in a question with the pursuer.
That is sufficient for the disposal of the case and absolves me
from considering the question whether injury through mental shock
is actionable only when, in the words of Kennedy, J., the shock
arises from a reasonable fear of immediate personal injury to one
self (Dulieu v. White & Sows [1901] 2 K.B. 669 at p. 675) which
was admittedly not the case in the present instance. It also
absolves me from considering whether, if the late John Young
neglected any duty which he owed to the pursuer, which, in my
opinion, he did not, the injury of which she complains was too
remote to entitle her to damages. I shall observe only that the
view expressed by Kennedy, J., has in Scotland the support of a
substantial body of authority, although it was not accepted by the
Court of Appeal in England in Hambrook v. Stokes Bros. [1925]
1 K.B. 141, notwithstanding a powerful dissent by Sargant, L.J.
This House has not yet been called upon to pronounce on the ques
tion either as a matter of Scots Law or as a matter of English Law,
and I reserve my opinion upon it. The decision in Owens v. Liver
pool Corporation [1939] I K.B. 394, if it is the logical consequence
of Hambrook's case, shows how farreaching is the principle in
volved.
On the second point it was argued that once an act is properly
characterised as negligent, that is to say, as a breach of a duty of
care owed to a particular person, then the party at fault is liable to

that person for everything that directly follows from the negligent
act whether or not it could have been foreseen as a natural and
probable result of the negligent act. For this the case of In re
Polemis and Furness, Withy & Co. [1921] 3 K.B. 560, was cited.
Whether the law there laid down is consonant with the law of Eng
land it will be for this House to pronounce when the occasion arises.
As at present advised, I doubt if it is the law of Scotland, and I
could cite ample authority to the contrary. But again this is not
a point which I deem it necessary to discuss now.
I am accordingly for affirming the decision of the Second Divi
sion of the Court of Session and dismissing the Appeal.
LordThan
kerton
Lord
Russell of
Killowen
Lord
Macmillan
Lord
Wright
Lord
Porter
[8]
HAY or BOURHILL
v.
YOUNG
Lord Wright
MY LORDS,
That damage by mental shock may give a cause of action is
now well established and is not disputed in this case, but as Philli
more J. pointed out in his admirable judgment in Dulieu y. White,
1901, 1 K.B. 600, the real difficulty in questions of this kind is to
decide whether there has been a wrongful act or breach of duty
on the part of the Defendant visàvis the Plaintiff. That being the
prior question, if it is answered against the Plaintiff the matter is
concluded. I shall therefore consider that issue in the first place.
The Appellant, according to the finding of the Lord Ordinary,
suffered substantial damage, and suffered it owing to the conduct
of the motorist. But the infliction of damage on a plaintiff does
not in itself give a cause of action. Damage due to the legitimate
exercise of a right is not actionable, even if the actor contemplates
the damage. It is damnium absque injuria. The damage must be
attributable to the breach by the defendant of some duty owing
to the plaintiff. Where there is no immediate physical action by
the defendant upon the plaintiff, but the action operates at a dis
tance or it not direct or is what is called nervous shock, difficulties
arise in ascertaining if there has been a breach of duty. Some
cases are comparatively simple. Thus in Smith v. London and
South Western Railway Co., L.R. 6, C.P. 14, at p. 22, Blackburn J.
makes some observations, obvious enough but not to be forgotten,
' If the negligence were once established it would be no answer
' that it did much more damage than was expected. If a man fires
' a gun across a road where he may reasonably anticipate that
' persons will be passing and hits someone, he is guilty of negligence
' and liable for the injury he has caused; but if he fires in his own
' wood, where he cannot reasonably anticipate that anyone will be,
' he is not liable to anyone whom he shoots, which shows that what
' a person may reasonably anticipate is important in considering
' whether he has been negligent." Much to the same effect Scrutton
L.J., in the Polemis case, 1921, 3 K.B. 560, at p. 577, said, " To deter
" mine whether an act is negligent, it is relevant to determine
" whether any reasonable person would foresee that the act would
" cause damage; if he would not the act is not negligent. . . . Once
" the act is negligent the fact that its exact operation was not fore
" seen is immaterial." These simple propositions are as much a
part of the law of Scotland as of England. It would be, I repeat, a
grievous defect if in a branch of law, of modern development like
that of negligence; and one affecting the ordinary life of the people,
there were a divergence in principle between the two laws. But
having regard to the views on this point expressed by Lord Mackay
and Lord Jamieson, I take it that they accept the test. Lord
Jamieson quotes the wellknown aphorism of Lord Atkin in
Donoghue v. Stevenson, 1932, A.C. 562, a Scotch case, at p. 580,
' You must take reasonable care to avoid acts or omissions which
" you can reasonably foresee would be likely to injure your neigh
" hour." And " neighbour " means " persons so closely and directly
" affected by my act that I ought reasonably to have them in con
" templation as being so affected when I am directing my mind to
" the acts or omissions which are called in question ". I do not
read Lord Atkin's language in a similar context in Hambrook v.
Stokes, 1925, 1 K.B. 141, at p. 156, as going beyond what he said
hi Donoghue (supra).
[9] 2
This general concept of reasonable foresight as the criterion
of negligence or breach of duty (strict or otherwise) may be criti
cised as too vague. But negligence is a fluid principle, which has
to be applied to the most diverse conditions and problems of human
life. It is a concrete not an abstract idea. It has to be fitted to the
facts of the particular case. Willes J. defined it as absence of care
according to the circumstances (Vaughan y. Toft Vale Co., 5
H. & N. 079, at 688). It is also always relative to the individual
affected. This raises a serious additional difficulty in the cases
where it has to be determined not merely whether the act itself
is negligent against someone but whether it is negligent visàvis the
plaintiff. This is a crucial point in cases of nervous shock. Thus
in the present case John Young was certainly negligent in an issue
between himself and the owner of the car which he ran into, but
it is another question whether he was negligent visàvis the
Appellant.
In such cases terms like " derivative" and " original" and
" primary " and " secondary " have been applied to define and dis
tinguish the type of the negligence. If, however, the Appellant has
a cause of action it is because of a wrong to herself. She cannot
build on a wrong to someone else. Her interest which was in her
own bodily security, was of a different order from the interest of
the owner of the car. That this is so is also illustrated by cases such
as have been called in the United States " rescue " or " search "
cases. This type has been recently examined and explained in the
Court of Appeal in Haynes v. Harwood, 1935, 1 K.B. 146, where
the Plaintiff, a police constable, was injured in stopping runaway
horses, in a crowded street, in which were many children. His
act was due to his mental reaction, whether instinctive or deliberate,
to the spectacle of others' peril. The Court of Appeal approved
the language used by the trial judge, Finlay J. (1934, 2 K.B. 247),
when he held that to leave the horses unattended was a breach
of duty not only to any person injured by being run over (in fact,
no one was so injured), but to the constable. Finlay J.'s words
were: " It seems to me that if horses run away it must be quite
" obviously contemplated that people are likely to be knocked
" down. It must also, I think, be contemplated that persons will
" attempt to stop the horses and try to prevent injury to life or
" limb." I may also refer to the admirable judgment of Cardozo J.
in the New York Court of Appeals, in Wagner v. International
Railway Co., 232, N.Y. 176, a " search " case, which is to the same
effect. This again shows how the ambit of the persons affected by
negligence or misconduct may extend beyond persons who are
actually subject to physical impact. There indeed may be no one
injured in a particular case by actual impact. But still a wrong may
be committed to anyone who suffers nervous shock or is injured in
an act of rescue. The man who negligently allows a horse to bolt,
or a car to run at large down a steep street, or a savage beast to
escape is committing a breach of duty towards every person who
comes within the range of foreseeable danger, whether by impact
or shock. But if there is no negligence or other default, there can
be no liability for either direct impact or for nervous shock. Thus,

if owing to a latent defect or some mischance for which no one is
liable, a terrifying collision occurs between vehicles on the road,
and the occupants are killed or suffer horrible injuries, a bystander
who suffers shock, whether through personal fear or merely horror,
would have no action. On somewhat similar principles may be
solved the problem of the old lady at Charring Cross, who suffers
shock because she narrowly escapes being run over. She cannot
claim damages if the driver is driving carefully, whether he hits
her or not.
The present case, like many others of this type, may, however,
raise the different question whether the Appellant's illness was not
due to her peculiar susceptibility. She was eight months gone in
3 [10]
pregnancy. Can it be said, apart from everything else, that it was
likely that a person of normal nervous strength would have been
affected in the circumstances by illness as the Appellant was?
Does the criterion of reasonable foresight extend beyond people of
ordinary health or susceptibility, or does it take into account the
peculiar susceptibilities or infirmities of those affected which the
Defendant neither knew of nor could reasonably be taken to have
foreseen ? Must the manner of conduct adapt itself to such special
individual peculiarities? If extreme cases are taken, the answer
appears to be fairly clear, unless indeed there is knowledge of the
extraordinary risk. One who suffers from the terrible tendency to
bleed on slight contact, which is denoted by the term " a bleeder,"
cannot complain if he mixes with the crowd and suffers severely,
perhaps fatally, from being merely brushed against. There is no
wrong done there. A blind or deaf man who crosses the traffic on
a busy street cannot complain if he is run over by a careful driver
who does not know of and could not be expected to observe and
guard against the man's infirmity. These questions go to " culpa
" bility, not compensation ", as Bankes L.J. said in the Polemis case
(supra), at p. 571. No doubt it has long ago been stated and often
restated that if the wrong is established the wrongdoer must take
the victim as he finds him. That, however, is only true, as the
Polemis case (supra) shows, on the condition that the wrong has
been established or admitted. The question of liability is anterior
to the question of the measure of the consequences which go with
the liability. That was the second point, decided not for the first
time, but merely reiterated in the Polemis case (supra). It must
be understood to be limited however to " direct" consequences to
the particular interest of the Plaintiff which is affected. The
Liesbosch case, 1933, A.C. 449, illustrates this limitation.
What is now being considered is the question of liability, and
this, I think, in a question whether there is duty owing to members
of the public who come within the ambit of the act, must generally
depend on a normal standard of susceptibility. This, it may be
said, is somewhat vague. That is true. But definition involves
limitation, which it is desirable to avoid further than is necessary
in a principle of law like negligence, which is widely ranging and
is still in the stage of development. It is here, as elsewhere, a
question of what the hypothetical reasonable man, viewing the
position, I suppose ex post facto, would say it was proper to fore
see. What danger of particular infirmity that would include must
depend on all the circumstances; but generally, I think, a reason
ably normal condition, if medical evidence is capable of defining
it, would be the standard. The test of the Plaintiff's extraordinary
susceptibility, if unknown to the Defendant, would in effect make
him an insurer. The lawyer likes to draw fixed and definite lines
and is apt to ask where the thing is to stop. I should reply it
should stop where in the particular case the good sense of the jury
or of the Judge decides. I should myself be disposed, as at present
advised, to say that it should have stopped short of judgment for
the Plaintiff in Owens v. Liverpool Corporation, 1939, 1 K.B. 394.
The particular susceptibility there was to my mind beyond any

range of normal expectancy or of reasonable foresight. I cannot,
however, forbear referring to a most important case in the High
Court of Australia, Chester v. Waverley Corporation, 62 C.L.R. 1,
where the Court by a majority held that no duty was made out
The dissenting judgment of Evatt J. will demand the consideration
of any judge who is called upon to consider these questions.
But when I apply the considerations which I have been dis
cussing to the present appeal, I come to the conclusion that the
judgment should be affirmed. The case is peculiar, as indeed,
though to a varying extent, all these cases are apt to be. There
is no dispute about the facts. Upon these facts, can it be said that
a duty is made out, and breach of that duty, so that the damage
[11] 4
which is found is recoverable? I think not The Appellant was
completely outside the range of the collision. She merely heard
a noise, which upset her, without her having any definite idea at
all. As she said: " I just got into a pack of nerves and I did not
know whether I was going to get it or not." She saw nothing
of the actual accident, or indeed any marks of blood until later.
1 cannot accept that John Young could reasonably have fore
seen, or more correctly, the reasonable hypothetical observer could
reasonably have foreseen, the likelihood that anyone placed as
the Appellant was, could be affected in the manner in which she
was. In my opinion John Young was guilty of no breach of duty
to the Appellant and was not in law responsible for the hurt she
sustained. I may add that the issue of duty or no duty is indeed
a question for the Court, but it depends on the view taken of the
facts. In the present case both Courts below have taken the view
that the Appellant has, on the facts of the case, no redress, and I
agree with their view.
This conclusion disposes of the present case and makes it un
necessary to decide the difficult question which was the subject of
lengthy argument and elaborate citation of authorities before your
Lordships. I have carefully considered all the authorities cited,
and it may well be that some day this House will have to examine
the exact meaning and effect of what Kennedy J. said in Dulieu v.
White (supra). He was, he said, inclined to think that there was
at least one limitation: " the shock where it operates through the
"mind must be a shock which arises from a reasonable fear of
" immediate personal injury to oneself." That statement, if meant
!to lay down a rigid rule of law, has been overruled by the Court of
Appeal in Hambrook v. Stokes, 1925, 1 K.B. 141, which now lays
down the English Law unless it is set aside by this House. As at
present advised, I agree with that decision. Kennedy J.'s dictum,
if intended to lay down a rigid limitation, is not, I think, in accord
ance with principle or with cases like Wilkinson v. Downton, 1897,
2 Q.B. 57. It finds no support in the judgment of Phillimore J.,
who implicitly lays down a wider principle. But as I may some day
have to decide the question in this House, I prefer to express here
no final opinion. If indeed the Inner House, having to determine
a case like Hambrook v. Stokes (supra), takes a different view,
this House may have to decide between the conflicting views of
the two Appellate Courts, because in a modern and developing
branch of law like that of negligence, the law adopted by the two
Courts should, if possible, be uniform. But that is a matter for the
future. Kennedy J.'s dictum does indeed give a rough criterion
which may be useful in some cases. But, always assuming that the
wrongful act is established, the damage to be proved is physical
injury due to nervous shock. Modern medical science may perhaps
show that the nervous shock is not necessarily associated with
any particular mental ideas. The worst nervous shock may for
'the moment at least paralyse the mind. But I do not pursue these
questionings on this occasion.

I concur in the motion proposed.
Lord
Thanker
ton.
Lord
Russell of
Killowen
Lord
Macmillan
Lord
Wright
Lord
Porter
[12]
HAY OR BOURHILL
v.
YOUNG
Lord Porter (read by lord wright)
MY LORDS,
This case raises a question which has been much canvassed
during the period beginning with Victoria Railways v. Coutlas,
13 App. Cas. 222, and ending with Hayes v. Harwood [1935],
1 K.B. 146.
The problem to be determined is whether the driver of a vehicle
who through his negligence causes physical injury to one person is
responsible for any and (if so) what consequent emotional injury to
another, at any rate if that emotion results in physical illness, or
perhaps it may be put more generally by asking to whom and for
what effects of his negligence a tort feasor is liable.
In considering the question it is I think essential to bear in mind
the distinction drawn in Polemis v. Furness Withy [1921],
3 K.B. 560; a distinction which is perhaps best expressed in the
words of Channell B., taken from Smith v. L & N.W. Rail
way, L.R. 6 C.P. 14, at p. 21, which are quoted by Scrutton L.J.
at p. 574. " Where there is no direct evidence of negligence the
" question what a reasonable man might foresee is of importance in
" considering the question whether there is evidence for the jury
" of negligence or not . . . but when it has been once determined
" that there is evidence of negligence the person guilty of it is
" equally liable for its consequences whether he could have foreseen
" them or not."
For the present I think it immaterial to consider whether the
second proposition is accurate or not. Before any decision upon
quantum of damage is required, it has first to be determined whether
the defender has been guilty of any negligence towards the pursuer.
' The law takes no cognizance of carelessness in the abstract. It
" concerns itself with carelessness only where there is a duty to

" take care and where failure in that duty has caused damage "
(per Lord Macmillan in Donoghue v. Stevenson [1932] A.C. 562
at p. 618. It is not enough to say that the Respondent was guilty
of negligence towards some one. Admittedly he was, and I will
assume without deciding that for all damages, whether expected
or unexpected, to that person he is liable. But is he therefore liable
for all damages of whatsoever nature to all other persons affected
by his negligence whether he could reasonably foresee that he
would injure them or not ?
For the present purpose I am also prepared to assume without
deciding that all types of injury are included, physical, mental and
emotional, and that once a defender is shown to be negligent
towards a pursuer he is liable for all such consequences.
Does it follow from this assumption that the defender is guilty
of negligence towards all persons on the highway because con
ceivably they might in other circumstances have suffered physical
damage, and amongst others towards those who were never in per
sonal danger themselves or in fear for their children or even for
third persons but were merely emotionally disturbed because some
person was in fact injured and because they heard the crash or saw
the result of the accident ?
In Dulieu v. White [1901], 2 K.B. 669, Kennedy J. thought
that only those in reasonable fear for their own safety could re
cover, not, I think, because he thought the damage was too remote
but because he thought that unless there was such fear no legal duty
was involved. As he says at p. 675, " A has no legal duty not to
I3] 2
" shock B's nerves by the exhibition of negligence towards C or
" towards the property of B or C In Smith v. Johnson & Co.
" (unreported) a man was killed by the defendants' negligence in
" the sight of the plaintiff and the plaintiff became ill, not from
'"the shock produced by fear of harm to himself, but from the
" shock of seeing another person killed. The Court held that this
" harm was too remote a consequence of the negligence. I should
" myself, as I have already indicated, have been inclined to go a step
" further and to hold upon the facts in Smith v. Johnson (supra) that
" as the defendant neither intended to affect the plaintiff injuriously
" nor did anything which could reasonably or naturally be expected
" to affect him injuriously there was no evidence of any breach of
" legal duty towards the plaintiff or in regard to him of that absence
" of care according to the circumstances which Willes J. in Vaughan
" v. Taft Vale Railway Co., [1860] 5 H. & N. 679 at p. 688 gave
" as a definition of negligence." So Phillimore J. in the same case
after suggesting at p. 684: " It may be (I do not say that it is
" so) that a person venturing into the streets takes his chance of
" terrors. If not fit for the streets at hours of crowded traffic he or
" she should not go there," says at p. 685, " The difficulty in these
" cases is to my mind not one as to the remoteness of the damage,
" but as to the uncertainty of there being any duty." It is true that
he does also envisage the possibility of liability for mental shock
apart from fear of personal injury in the remark on p. 682: " I
" think there may be cases in which A owes a duty to B not to inflict
" a mental shock on him or her and that in such a case if A does
" inflict such a shock upon B, and physical damage thereby ensues,
" B may have an action for the physical damage though the
" medium through which it has been inflicted is the mind." But
his previous remarks show that he would not necessarily include
mental shock due to the sight of an accident in the streets.
In Hambrook v. Stokes [1925], 1 K.B. 141, in which the plaintiff
succeeded, negligence was admitted, and as Lord Atkin, then
Atkin L.J., pointed out, such an admission can only mean an admis
sion of negligence towards the plaintiff. But none of the Lords
Justices who heard the case confined themselves to considera
tions founded upon this fact. Bankes L.J., at p. 151, expressed
himself thus: "... What a man ought to have antici
" pated is material when considering the extent of his duty.
" Upon the authorities, as they stand, the defendant ought
" to have anticipated that, if his lorry ran away down mis
" narrow street, it might terrify some woman to such an extent,
" through fear of some immediate bodily injury to her health, that
" she would receive such a mental shock as would injure herself ",
and he then goes on to assert that in his view no distinction can be
drawn between the fear of a mother for her own safety and her
fear for her children. He was careful to limit the scope of his
decision to the facts of the case then under consideration and to
confine his determination to cases where the claimant was in fear
for his or her own personal safety or that of his or her children.
Of Smith v. Johnson & Co. he says, at p. 150: " It may well be that
" the duty of a person to take care does not extend to a person in the
" position of the plaintiff in Smith v. Johnson & Co. [supra) or to
"the person indicated as B in Kennedy J.'s illustration, and yet
"may extend to a person in the position of the plaintiff's wife."
Atkin L. J., at p. 156, said: " Apart from the admission in the
" pleadings I think that the cause of action is complete. The duty
" of the owner of a motor car in a highway is not a duty to refrain
" from inflicting a particular kind of injury upon those who are
" in the highway. If so, he would be an insurer. It is a duty to
" use reasonable care to avoid injuring those using the highway.
" It is thus a duty owed to all wayfarers, whether they are injured
" or not. . . . Further the breach of duty does not take place
" necessarily when the vehicle strikes or injures the wayfarer. The
3 [14]
" negligent act or omission may precede the act of injury. In this
" case it was completed at the top of Dover Street when the car
"was left unattended. . . ." He continued, on p. 158: 'In
"my opinion it is not necessary to treat this cause of
" action as based upon a duty to take reasonable care to avoid
"administering a shock to wayfarers. The cause of action, as
" I have said, appears to be created by breach of the ordinary
" duty to take reasonable care to avoid inflicting personal injuries
" followed by damage, even though the type of damage may be
"unexpected, namely, shock. The question appears to be as to
"the extent of the duty and not as to remoteness of damage."
Sargant L.J. differed and like Kennedy J. would confine liability to
cases of reasonable fear for personal safety but only because in
his view the injury complained of could not reasonably have been
anticipated and therefore the defendant had broken no duty which
he owed to the defendant. At p. 162 he says: " . . . I should
"prefer, with Kennedy J., to put it not on the ground that the
"harm was too remote a consequence of the negligence but on
" (what is often practically equivalent) a consideration of the extent
"of the duty of the defendant towards the plaintiff and others
" on and near the highway. That is to say that, as the defendant
" did not do anything which could reasonably or naturally be
" expected to cause the harm in question to the plaintiff, there was
"no evidence of any breach of duty towards him for which the
" defendant could be rendered liable." In the result the plaintiff
succeeded.
A conclusion in favour of the plaintiff was also reached by the
Court of Appeal in Owens v. Liverpool Corporation [1939],
I K.B. 394, in which the driver of a tram negligently ran into a
hearse containing the body of a relative of the plaintiffs and was
held liable to them in respect of illness caused by the shock of
seeing the accident. The Lords Justices seem to have accepted
the view that the driver ought to have anticipated that the result
of his negligence might be to cause emotional distress to spectators
of the consequent accident and therefore was guilty of negligence
towards any one physically affected by feelings induced by the
sight presented to them. With all respect I do not myself consider
the Court of Appeal justified in thinking that the driver should
have anticipated any injury to the plaintiffs as mere spectators or
that he was in breach of any duty which he owed to them.
I have however dealt with both these cases and particularly
with Hambrook v. Stokes (supra) somewhat at length because they
show the high water mark reached in claims of the character now
in question. It will be observed that in the earlier case all the
Lords Justices were careful to point out that the vital problem
was the extent of the duty and not the remoteness of damages—
a view in which they were supported by the opinions of Kennedy
and Phillimore JJ. in Dulieu v. White (supra). With this view I
agree, and ask myself whether the defenders in the present case
owed any duty to the pursuer.
In the case of a civil action there is no such thing as negligence

in the abstract: there must be neglect of the use of care towards a
person towards whom the defendant owes the duty of observing
care. And I am content to take the statement of Lord Atkin in
Donoghue v. Stevenson [1932], A.C. 562, at p. 580, as indicating
the extent of the duty. ' You must take," he says, " reasonable
" care to avoid acts or omissions which you can reasonably fore
" see would be likely to injure your neighbour. Who then in law
" is my neighbour ? The answer seems to be, persons 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."
[15] 4
Is the result of this view that all persons in or near the street
down which the negligent driver is progressing are potential victims
of his negligence? Though from their position it is quite impos
sible that any injury should happen to them and though they
have no relatives or even friends who might be endangered, is a
duty of care to them owed and broken because they might have
been but were not in a spot exposed to the errant driving of the
peccant car?
I cannot think so. The duty is not to the world at large. It
must be tested by asking with reference to each several com
plainant, was a duty owed to him or her.
If no one of them was in such a position that direct physical
injury could reasonably be anticipated to them or their relations
or friends normally I think no duty would be owed: and if in
addition no shock was reasonably to be anticipated to them as a
result of the defender's negligence, the defender might indeed be
guilty of actionable negligence to others but not of negligence
towards them.
In the present case the defender was never herself in any bodily
danger nor reasonably in fear of danger either for herself or others.
She was merely a person who as a result of the action was
emotionally disturbed and rendered physically ill by that emotional
disturbance. The question whether emotional disturbance or shock,
which a defender ought reasonably to have anticipated as likely to
follow from his reckless driving, can ever form the basis of a claim
is not in issue. It is not every emotional disturbance or every shock
which should have been foreseen. The driver of a car or vehicle
even though careless is entitled to assume that the ordinary fre
quenter of the streets has sufficient fortitude to endure such incidents
as may from time to time be expected .to occur in them, including
the noise of a collision and the sight of injury to others, and is not
to be considered negligent towards one who does not possess the
customary phlegm.
In Hambrook v. Stokes (supra) the Defendant's lorry was left
unattended and improperly braked at the top of a steep and narrow
street with the engine running, with the result that it started off by
itself and ran violently down the hill, putting the Plaintiff in fear
for the safety of her children whom she had just left and thereby
causing a serious illness and ultimately her death.
In such circumstances it might well be held that the negligence
complained of was a potential danger to all those in the way and
that the careless driver should have foreseen the likelihood of actual
or apprehended injury to anyone in the street down which the lorry
might run and the possibility of illness being produced in a mother
from fear that the runaway car would injure her children.
The position of the defender in the present case is more favour
able. The rider of the cycle had not left it to career at its own will
—he was always in control and his negligence was not to all
those in the highway but only to anyone turning or intending

to turn in front of him into a side road. The pursuer was not
such a person and the only allegation of negligence which I can
find in the condescendence is not towards her but, as I understand
it, towards traffic proceeding across or at any rate down the road
towards the cyclist. So far as the pursuer is concerned she com
plains of nothing but the disturbance caused by an accident to the
cyclist himself and in her claim confines her allegation to a general
averment against him of negligence resulting in a collision with a
motor car. She in no way connects that negligence with herself
except by the assertion that she sustained a very severe shock to
her nervous system and by an amendment assented to in the Inner
House expressly repudiates any fear of personal injury.
5 [16]
The Lord Ordinary, if I understand him aright, was nevertheless
prepared to treat the case on the basis that the pursuer had been
put in fear of bodily injury to herself. " At the best for her ", he
says, " it can be said that the shock arose from a fear of immediate
" bodily injury to herself, but only from a fear which had no
" rational basis—or in other words an unreasoned fear, and as the
" whole facts disclose an unreasonable fear."
In your Lordships' House the pursuer's representatives preferred
to rest their case upon the terms of the amended plea and confined
their arguments to considerations based upon an averment that the
pursuer was not put in fear of injury to herself or others but was
only emotionally disturbed and rendered physically ill by the crash
and possibly by the sight of the injured man.
This limited contention was no doubt prudently adopted since,
though the Lord Ordinary had found that any fear of personal
injury was unreasoned and unreasonable, he had made no similar
finding as to fear engendered by the crash or sight.
In order, however, to establish a duty towards herself, the pur
suer must still show that the cyclist should reasonably have foreseen
emotional injury to her as a result of his negligent driving, and, as
I have indicated, I do not think she has done so.
If I am right in thinking that the pursuer has established no
duty towards herself in the deceased man and no breach of any duty
she must fail unless it can be said that there is some principle in
the law of Scotland, which is not to be found in the law of England,
under which she can recover. I should be loth to think that there
is any difference between the principles adopted in the two systems.
Nor can I find in the cases quoted any decision or even dicta which
would warrant a decision in favour of the pursuer in the present
instance.
Taking the cases in the order in which they were quoted the
claim in Cooper v. Caledonian Railway Co. [1902], 4 F. 880, was
based on an allegation of fear of personal physical injury and even
in that case the allegation was only held to be relevant if it appeared
that the fright resulting from the negligent act might reasonably
arise in a mind of average intelligence and strength, i.e., it must not
be unreasoned and unreasonable. Gilligan v. Robb [1910], S.C.
856, contained an averment of negligence and fear of physical
injury. In Ross v. Corporation of Glasgow [1919], S.C. 174, in
which a tramcar was driven negligently on the wrong line but
drawn up slowly and carefully short of another car, it was held
that fright thereby caused was not naturally or probably caused
by the negligent act and that the defenders had no duty to antici
pate such a consequence. Brown v. Corporation of Glasgow [1922],
S.C. 527, and Currie v. War drop [1927], S.C. 538, both led to con
siderable divergence of opinion and in each the conclusion that a
cause of action existed was reached by a majority of three against
two. In the former there was an allegation of fear of personal
injury and a finding by the Court that that fear was reasonable.
In the latter a man and his fiancée walking together were knocked
down by a negligent motor driver—the man killed and the woman

suffered physically from consequent nervous shock partly due to
the accident to herself and partly to fear for the safety of her com
panion. Undoubtedly there was in that case a duty to the pursuer
(the woman) and a breach of that duty and the decision of the
majority was due to that fact coupled with the impossibility of dis
tinguishing between the physical injury due to each type of shock.
A v. B's Trustees [1906], 13 S.L.T. 830, in which a lodger committed
suicide in the lodgings he had hired and both did some material
damage and administered a nervous shock to his landladies may be
explained as founded on contract or on the fact that the material
damage might have been anticipated. Finally in Walker v. Pitlochry
[17] 6
Motor Co. [1930], S.C. 565, the pursuer was held entitled to recover
in respect of the physical consequences of shock occasioned by the
sight of injury caused to a near relative, shock which it was held
might reasonably have been anticipated as a result of the negligent
act.
To the same effect is the Irish case of Bell v. Great Northern
Railway Co. of Ireland [1890], 26 L.R.Ir. 428, in which illness due
to reasonable apprehension of personal injury due to the defend
ants' negligence was held to give a cause of action.
These cases are at any rate no more favourable to the pursuer's
contention than those decided in England. In all three countries
no doubt shock occasioned by deliberate action affords a valid
ground of claim (see Wilkinson v. Downton [1897] 2 Q.B. 57 and
Janvier v. Sweeney [1919] 2 K.B. 316), and so I think does shock
occasioned by reasonable apprehension of injury to oneself or
others, at any rate if those others are closely connected with the
claimant. What is reasonable may give rise to some difference of
opinion but whether illness due to shock which might reasonably
have been anticipated as the result of injury to others can or cannot
form the basis of a successful claim need not now be considered.
No exceptionally loud noise or particularly gruesome sight is alleged
or any circumstance suggesting that the cyclist should have anti
cipated he would cause a shock to the pursuer.
On the ground that there never was any duty owed by the
deceased man to the pursuer or breach of such a duty, I should dis
miss the Appeal. In so deciding, I believe I am following the
reasoning and conclusion of the Lord Ordinary as well as those of
the majority in the Inner House, with whose opinions I agree.
Mr. Montague Berryman
(COUNSEL FOR THE RESPONDENT) :
May it please your Lordships; before your Lordship puts the
Motion to the House, there is one point which arises as to the costs
to which I am instructed to draw your Lordships' attention and
with which I am instructed to invite your Lordships to deal. Your
Lordships will remember that the case started with an interlocutor
of Lord Robertson dated the 26th April, 1940; upon that there was
a reclaiming motion which was heard before the Extra Division
on the 1st August, 1940—your Lordships will find that at pages 12
and 13 of the Appellant's Case—and upon that the case was re
mitted in order that there might be a proof before answer. On that
reclaiming motion the Respondent to this appeal was ordered to
pay the costs, although in fact Lord Robertson, I think—I am so
instructed; I was not there when the case was argued—had in fact
arrived at the same conclusions as your Lordships without any
reference to the argument at all
Lord Thankerton:
But that was purely on relevancy. The pursuer succeeded on

her motion, and she got her expenses.
Mr. Berryman:
That is so. That is all I was dealing with.
Lord Thankerton:
That is not touched, of course.
Mr. Berryman:
No, at the moment that is not touched.
Lord Wright:
It is not the subject of appeal.
7 [18]
Lord Macmillan:
It is not the effect of our decision to deprive the pursuer of her
expenses in the Inner House on a preliminary discussion on
relevancy.
Lord Thankerton:
No, we do not touch any interlocutor below. You need have
no anxiety about your expenses. " Costs " here means only the
costs of this Appeal.
Mr. Berryman:
It was only in our anxiety to get repayment of those costs that
I was instructed to address your Lordships.
Lord Thankerton:
It is not appealed against.
Mr. Berryman:
No, strictly I do not think it is. If your Lordships please.
(24180r) Wt, 8222—4 16 8/42 D.L. G. 338
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1
Queen’s Bench Division,
England
Bolam
Versus
Friern Hospital Management Committee
BEFORE:
Mc Nair, J.
February 20, 21,22,25,26, 1957.
Action.
In this action John Hector Bolam, the Plaintiff, claimed damages against Friern Hospital
Management Committee, the Defendants, in respect of injuries which he received while undergoing
electro-convulsive therapy on Aug. 23 1954, at Friern Hospital.
The Plaintiff, a salesman, was admitted to Friern Hospital on Apr. 29, 1954, suffering from the after-
effects of a mental illness of the depressive type. He was discharged from the hospital on July 30,
1954, but was readmitted on Aug. 16,1954, suffering from depression. On Aug. 18 the Plaintiff
was examined by Dr. J. de Bastarrechea, consultant psychiatrist attached to Friern Hospital, who
advised the Plaintiff to undergo electro-convulsive therapy, and told him that it was proposed to
apply that treatment on the following day. Electroconvulsive therapy is carried out by placing
electrodes on the head which allow an electric current from a machine to pass through the brain.
One of the results of the treatment is to cause convulsions in the nature of a fit. Dr. De Bastarrechea
did not warn the Plaintiff of the risks involved, one of which was the risks of fracture. The Plaintiff
signed a form consenting to the treatment. On August 19 the Plaintiff was treated with electro-
convulsive therapy. He again received this treatment on August 23 when it was administrated by
Dr. C. Allfrey, a senior registrar at Friern Hospital. On this occasion an initial shock was passed
through the Plaintiff’s brain for approximately one second and was followed within approximately four
seconds by a succession of five momentary shocks administered for the purpose of damping the
amplitude of the jerking movements of the Plaintiff’s body. No further shocks were administered
and the convulsion was not unusually violent. The voltage of the current was 150 volts, the
frequency fifty cycles per second. During this treatment the Plaintiff lay in a supine position, a pillow
was placed under his back, and his lower jaw was supported on a moth gag by a male nurse;
otherwise, he was not restrained in any way, although a male nurse stood at each side (viz., three
male nurses in all) of him in case he should move from it. No relaxant drugs were administered to
the Plaintiff prior to the treatment. In the course of this treatment the Plaintiff sustained severe
physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each
side which were caused by the head of the femur on each side being driven through the acetabulum
or cup on the pelvis.
The medical evidence showed that competent doctors held divergent views on the desirability of
using relaxant drugs, and restraining the patient’s body by manual control, and also on the question
of warning a patient of the risks of electro-convulsive therapy.
The Plaintiff contended that the Defendants were negligent in permitting Dr. Allfrey to administer
electro-convulsive therapy without the previous administration of a relaxant drug, or without
restraining the convulsive movements of the Plaintiff by manual control, and in failing to warn the
Plaintiff of the risk which he was taking in consenting to have the treatment; and, further, that Dr.
Allfrey was negligent in so administering the treatment and that the Defendants were vicariously
responsible for that negligence.
N.R. Fox-Andrews, Q.C., and R.F. Ormrod for the Plaintiff
J. Stirling, Q.C., and E.D. Sutcliff for the Defendants.
ORDER: Mc Nair, J.
Members of the jury, when some days ago this case was opened to you by counsel for the Plaintiff
and you were told the tragic story of this Plaintiff’s sufferings and his experience, and when you later
2
saw him in the witness-box and saw what a hopeless condition he was in, you must inevitably have
been moved to pity and compassion. Nobody hearing that story or seeing that man could fail to be
so moved; but counsel have told you, rightly, that the jury is not entitled to give damages based on
sympathy or compassion. You will only give damages if you are satisfied that the Defendants have
been proved to be guilty of negligence. Counsel for the Plaintiff accepts that he has to satisfy you,
first, that there was some act of negligence, in the sense which I will describe in a moment, on behalf
of the Defendants, which primarily means negligence by Dr. Allfrey, and, secondly, that the
negligence did cause the terrible injuries which the Plaintiff suffered, or at least that the Defendants
negligently failed to take some precaution which would have minimised the risk of those injuries.
Before dealing with the law, I think it right that I should say this, that you have got to look at this
case in its proper perspective. You have been told by one doctor that he had only seen one
acetabular fracture in fifty thousand cases, involving a quarter of a million treatments. It is clear that
the particular injury which produced these disastrous results in the Plaintiff is one of extreme rarity.
Another fact which I think it right to bear in mind is this, that whereas some years ago when a
patient went into mental institution afflicted with mental illness, he had very little hope of recovery –
in most cases he could only expect to be carefully and kindly treated until in due course merciful
death released him from his sufferings - today, according to the evidence which you have had
before you, the position is entirely changed. Distinguished practitioners from some of the leading
mental hospitals in the country have put before you what, I venture to think, are quite staggering
figures of the number of patients now treated in these hospitals. Today, a man who enters a mental
hospital suffering from a particular type of mental disorder has a real chance of recovery. You were
told that that change was due almost entirely to the introduction of physical methods of treatment of
mental illness, and of those physical methods the electro-convulsive therapy, which you have been
considering during the last few days, is the most important. When you approach this case and
consider whether it has been proved against the Defendants that negligence was committed, you
have to bear in mind the enormous benefits which are conferred on men and woman by this form of
treatment.
Another general comment that I would make is this : On the evidence it is clear, is it not, that the
science of electro-convulsive therapy is a progressive science? Its development has been traced
for you over the few years in which it has been used in this country. You may think on this evidence
that, even today, there is no standard settled technique to which all competent doctors will agree.
The doctors called before you have mentioned in turn different variants of the technique that they
use. Some use restraining sheets, some use relaxant drugs, some use manual control; but the final
question about which you must make up your minds is this whether Dr. Allfrey, following on the
practice that he had learned at Friern Hospital and following on the technique which had been
shown to him by Dr. De Bastarrechea, was negligent in failing to use relaxant drugs or, if he decided
not to use relaxant drugs, that he was negligent in failing to exercise any manual control over the
patient beyond merely arranging for his shoulders to be held, the chin supported, a gag used, and a
pillow put under his back. No one suggests that there was any negligence in the diagnosis, or in the
decision to use electro-convulsive therapy. Furthermore, no one suggests that Dr. Allfrey, or anyone
at the hospital, was in any way indifferent to the care of their patients. The only question is really a
question of professional skill.
Before I turn to that, I must explain what in law we mean by “negligence”. In the ordinary case which
does not involve any special skill, negligence in law means this: Some failure to do some act which a
reasonable man in the circumstances would do, or doing some act which a reasonable man in the
circumstances would not do; and if that failure or doing of that act results in injury, then there is a
cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of the man in the street. He is the ordinary man. In
one case it has been said that you judge it by the conduct of the man on the top of a Clapham
omnibus. He is the ordinary man. But where you get a situation which involves the use of some
special skill or competence, then the test whether there has been negligence or not is not the test
of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is
the standard of the ordinary skilled man exercising the professing to have that special skill. A man
need not possess the highest expert skill at the risk of being found negligent. It is well established
law that it is sufficient if he exercises the ordinary skills of an ordinary competent man exercising that
particular art. I do not think that I quarrel much with any of the submissions in law which have been
put before you by counsel. Counsel for the Plaintiff put it in this way, that in the case of a medical
3
man negligence means failure to act in accordance with the standards of reasonably competent
medical men at the time. That is a perfectly accurate statement, as long as it is remembered that
there may be one or more perfectly proper standards; and if a medical man conforms with one of
those proper standards then he is not negligent. Counsel for the Plaintiff was also right, in my
judgement, in saying that a mere personal belief that a particular technique is best is no defence
unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis
which is laid by counsel for the Defendants is on this aspect of negligence: He submitted to you that
the real question on which you have to make up your mind on each of the three major points to be
considered is whether the Defendants, in acting in the way in which they did, were acting in
accordance with a practice of competent respected professional opinion. Counsel for the Defendants
submitted that if you are satisfied that they were acting in accordance with a practice of a competent
body of professional opinion, then it would be wrong for you to hold that negligence was
established. I referred, before I started these observations, to a statement which is contained in a
recent Scottish case, Hunter v. Hanley (1) (1955) S.L.T. 213 at p. 217), which dealt with medical
matters, where the Lord President (LORD CLYDE) said this :
“In the realm of diagnosis and treatment there is ample scope for genuine difference of
opinion, and one man clearly is not negligent merely because his conclusion differs from
that of other professional men, nor because he has displayed less skill or knowledge than
others would have shown. The true test for establishing negligence in diagnosis or
treatment on the part of a doctor is whether he has been proved to be guilty of such failure as
no doctor of ordinary skill would be guilty of if acting with ordinary care.”
If that statement of the true test is qualified by the words “in all the circumstances”, counsel for the
Plaintiff would not seek to say that expression of opinion does not accord with English law. It is just
a question of expression. I myself would prefer to put it this way: A doctor is not guilty of negligence
if he has acted in accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art. I do not think there is much difference in sense. It is just a different
way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is
acting in accordance with such a practice, merely because there is a body of opinion that takes a
contrary view. At the same time, that does not mean that a medical man can obstinately and pig-
headedly carry on with some old technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I
don’t believe in anaesthetics. I don’t believe in antiseptics. I am going to continue to do my surgery
in the way it was done in the eighteenth century”. That clearly would be wrong.
Before I deal with the details of the case, it is right to say this, that it is not essential for you to decide
which of two practices is the better practice, as long as you accept that what Dr. Allfrey did was in
accordance with a practice accepted by responsible persons; but if the result of the evidence is that
you are satisfied that his practice is better than the practice spoken of on the other side, then it is a
stronger case. Finally, bear this in mind, that you are now considering whether it was negligent for
certain action to be taken in August, 1954, not in February, 1957; and in one of the well-known cases
on this topic it has been said you must not look through 1957 spectacles at what happened in 1954.
The Plaintiff’s case primarily depends on three points. First, it is said that the Defendants were
negligent in failing to give to the Plaintiff a warning of the risks involved in electro-convulsive therapy,
so that he might have had a chance to decide whether he was going to take those risks or not.
Secondly, it is said that they were negligent for failing to use any relaxant drugs which admittedly, if
used, would have excluded, to all intents and purposes, the risk of fracture altogether. Thirdly – and
this was, I think, the point on which counsel for the Plaintiff laid the most emphasis – it is said that if
relaxant drugs were not used, then at least some form of manual control beyond shoulder control,
support of the chin, and placing a pillow under the back, should have been used.
Let us examine those three points. Bear in mind that your task is to see whether, in failing to take
the action which it is said Dr. Allfrey should have taken, he has fallen below a standard of practice
recognised as proper by a competent reasonable body of opinion? First let me deal with the
question of warning. There are two questions that you have to consider. First - does good medical
practice require that a warning should be given to a patient before he is submitted to elector-
convulsive therapy ? Secondly - if a warning had been given, what difference would it have made ?
Are you satisfied that the Plaintiff would have said: “ You tell me what the risks are. I won’t take
those risks. I prefer not to have the treatment.”
4
The Plaintiff relies, on this aspect of the case, on the evidence of Dr. Randall who you may think,
was a most distinguished psychiatrist, well qualified to express an opinion. He said regarding his
practice as to giving a warning:
“Having assessed the patient, it is then put to him that he might benefit from electro-
convulsive therapy - some people call it electro-shock therapy, but from the point of view of
the patient that is not material because the patient is never aware either that he has a shock
or a convulsion. Our practice at St. Thomas’s Hospital, and my practice at Charing Cross
Hospital is to provide the patient with a consent form.”
Dr. Randall was asked whether he would warn the patient of the risks involved. He answered:
“Yes, I would indeed; in fact, we do. I make a practice always of saying to the patient that,
using the technique of relaxation, he would be given an injection which would put him to
sleep; that he would then be given another injection which would have the effect of
paralysing all his muscles so that he could not move. I explain to the patient that if he were
not given a relaxant drug his body would make some strong movements.”
Dr. Randall was asked about the warning:

“Q. - If you feel very sincerely as a doctor that it is the only hope of relieving this illness,
would you think it wise to discourage the patient by describing to him the possible risk of
serious fractures? A.--- I suppose that one has to form some opinion whether the patient is
likely to be influenced by it. Depressed patients are often deluded about their bodily health,
and nothing will alter their attitude. Taking that distortion of judgment into account, it is
probable that to tell a patient that a risk of fracture exists will not materially alter his attitude
to treatment, or his attitude to his illness.”
If it is right that to tell a patient of the risk of fracture will not materially alter his attitude to treatment or
his attitude to his illness, you may ask yourselves: is there really any great value in giving this
warning? In dealing with consent forms, Dr. Randall says that these forms are provided so that the
patient may be aware of the nature of the treatment, and also because it is the practice of the boards
of governors of hospitals to provide them in case litigation ensues. Then Dr. Randall’s evidence
continued:
“Q. - Does it help the patient in any way to be told all the risks which are involved in
electro-convulsive therapy?
A. - In the outcome I think that is does, because the patient takes the decision whether or
not to have a treatment which might affect his whole future, and at that point he has the
chance of deciding whether he will do it or whether he will not do it.
Q. - Would you quarrel with a point of view as being wholly unsound if it was held that it was
not beneficial to the patient to hear about that sort of thing?
A. - I can believe that there would be circumstances in which it could be considered that it
would not be beneficial to tell a patient of possible dangers and mishaps, subject to what I
have already said.”
Then I put questions to him:

“Q. - Do you thing that other competent people might take a contrary view to the one which
you have expressed?
A.- I think so, my Lord; yes, they might.
Q. - Other competent people might think that it is better not to give any warning at all?
A. - I think that that is going a little further than I could go generally, but I think that other
people might consider ti better not to give any warning at all.”
Counsel for the Plaintiff quite rightly relies on answers which Dr Randall gave in re-examination.
“Q. - Do you think it ever right to give no warning of the risk to a person who can understand
the warning?
A. - I think that it is not right to give no warning of the risks to a patient who can understand
the import of the warning.”
That is the high water mark of the case for the Plaintiff in favour of the view that it was negligent, in
the sense which I have used, not to give a warning.
5
Against that, you have to consider the evidence given by the Defendants; first by Dr. De
Bastarrechea, who says:
“I don’t warn as to technique. I don’t thing it desirable to do so. If the patient asks me about
the risks, I say that there is a very slight risk to life, less than in any surgical operation. Risk
of fracture 1 in 10,000. If they don’t ask me anything, I don’t say anything about the risk.”
Dr. de Bastarrechea also said that in his view there was some danger in emphasising to a patient
who ex hypothesi is mentally ill any dangers which in the doctor’s view were minimal, because, if he
does so, the patient may deprive himself by refusal of a remedy which is the only available hopeful
remedy open to him. In cross-examination Dr. de Bastarrechea agreed that when an operation is
decided on, the patient should be carefully examined, but not that he should be warned of all the
risks involved. He agreed that a man should be given the opportunity of deciding whether to take the
risk, but it should be left to him to put questions; he should be told that there were some slight risks,
but not told of the risks of catastrophe.
Dr. Baker, consultant psychiatrist and deputy Superintendent at Bastead Hospital, on the question of
warning, said:
“I have to use my judgment. Giving the full details may drive a patient away. I would not say
that a practitioner fell below the proper standard of medical practice in failing to point out all
the risks involved.”
Dr. Page, deputy medical officer at the Three Counties Hospital, Bedfordshire, said:
“Every patient has to be considered as an individual. I ask them if they know of the
treatment. If they are unduly nervous, I don’t say too much. If they ask me questions, I tell
them the truth. The risk is small, but a serious thing when it happens; and it would be a great
mistake if they refused to benefit from the treatment because of fear. In the case of a patient
who is very depressed and suicidal, it is difficult to tell him of things which you know would
make him worse.”
That is, in very summary form, the evidence on this point that you have to consider ; and, having
considered it, you have to make up your minds whether it has been proved to your satisfaction that
when the defendants adopted the practice that they did (namely, the practice of saying very little and
waiting for questions from the patient), they were falling below a proper standard of competent
professional opinion on this question of whether or not it is right to warn. Members of the jury,
though it is a matter entirely for you, you may well think that when a doctor is dealing with a mentally
sick man and has a strong belief that his only hope of cure is submission to electro-convulsive
therapy, the doctor cannot be criticised if he does not stress the dangers, which he believes to be
minimal, which are involved in that treatment.
The Second point on the question of giving a warning is this: Suppose you come to the conclusion
that proper practice requires some warning to be given, if a warning had been given, would it have
made any difference? Only the Plaintiff can answer that question, and he was never asked it. The
Plaintiff dealt with the point quite shortly when he said:
“On August 16 I was examined by Dr. de Bastarrechea. He told me he recommended
convulsive treatment. I knew what it meant; but Dr. de Bastarrechea did not give me any
warning of any risk.”
The question what the Plaintiff would have done if he had been told that there was a one in ten
thousand risk was never put. Surely, members of the jury, it is mere speculation on your part to
decide what the answer would have been , and you might well take the view that unless the Plaintiff
has satisfied you that he would not have taken the treatment if he had been warned, there is really
nothing in this point.
I now pass to what I venture to believe is the real point which you have to consider, or the two real
points that you have to consider: Was it negligent, in the sense which I have indicated, not to use
relaxant drugs? It is really a double point: Was it negligent not to use relaxant drugs and, if no
relaxant drugs were used, was it negligent to fail to use manual control? But it is easier to take
them separately. On the Plaintiff’s side, the argument is put this way, that if relaxant drugs had been
used, it is common ground that the risk of fracture in the operation would, to all intents and purposes,
be excluded; therefore it ought to be excluded. On the other hand, the defendants say that the risk of
6
fracture without the use of relaxant drugs is minimal, although if a fracture does occur it may be very
serious to the patient; but there is also, in the use of relaxant drugs, with an anaesthetic, another
risk which has got to be balanced against the risk of fracture, and that is the mortality risk. The
defendants say that, forming a judgment as best they can as medical men, balancing what they
believe to be a remote risk of fracture on the one hand with what they believe to be a remote risk of
mortality on the other hand, they, as a matter of professional skill, have decided not to use relaxant
drugs except in cases where there is something special in the patient’s condition which indicates
that a relaxant drugs should be used. For instance, if a man has had a recent fracture or is suffering
from some arthritic condition, or, as I think that some witnesses mentioned, hernia. In those
circumstances the defendants say that they would use relaxant drugs merely to avoid the greater
risk of straight electro-convulsive therapy in those particular cases; but that they select the cases in
which relaxant drugs are to be used by the exercise of their clinical judgment. That is the argument,
and you have to make up your minds which you think is right.
Dr. Randall gave evidence in support of the relaxant school of thought. He said that since he has
used relaxant drugs, he has never had a fracture. He also told you that until 1953, the year before the
Plaintiff’s accident, he only used relaxant drugs in selected cases, but in 1953 he started using them
in every case. He agreed, however, that there was a large body of opinion which believed in giving
electro-convulsive therapy straight and unmodified today. In the final questions that I put to Dr.
Randall at the end of his evidence this appeared:
“Q - You told the jury, as I understand it that although you are in favour of relaxants, there is
a large body of opinion of competent persons, whose opinion you respect, who take a
contrary view.
A. - Yes.
Q.- That being so, supposing in August 1954, a practitioner using electro-convulsive therapy
did not use relaxants, could you say that he was falling below the standard of care required
of a competent practitioner merely by failing to use relaxants?
A. - One could not say that. It is a known method of reducing, minimising, fractures, but that
it was not used you could not say many other hospitals would not have taken the same
attitude to it.”
I can summarise the evidence given for the defendants in this way. Dr. de Bastarrechea says that he
started to use relaxant drugs in selected cases as far back as 1948, and continues that practice
today; but that he does not use them universally, for two reasons: because, viewing it fairly, he
believes that the risk of a fracture with any serious results when electro-convulsive therapy is used
straight, i.e. without relaxant drugs, is very small, and because he is conscious that there is a
mortality risk when relaxant drugs are used. He produced figures from Friern Hospital which show
that six deaths were recorded since 1951, following on electro-convulsive therapy: Dr. de
Bastarrechea recalled from his own memory two further deaths in earlier years, making eight in all.
Of those eight deaths, five at least were deaths in cases where relaxant drugs had been used, and
one only was a death resulting from straight electro-convulsive therapy. Those figure are produced
in support of the clinical impression which Dr. de Bastarrechea had formed, that there was some risk
of death in the use of relaxant drugs which he balanced against the risk of fracture without using
them. He formed a judgment, on which he operated in Friern Hospital, that unless there were
indications in favour of using relaxant drugs, it was better not to use them. Dr. Allfrey found the
same practice existing at Knole when he was first trained there. He told you that from 1946 to 1952
no relaxant drugs were used, but from 1949 onwards they began to be used in selected cases but
were never used as a routine. When he arrived at Friern Hospital, he found this same practice, i.e.,
that relaxant drugs were used only in selected cases. Counsel for the Plaintiff urged strongly that
your should come to the conclusion that Dr. Allfrey realised he was wrong, because during the week
following on the misfortune to the Plaintiff he changed his practice. The record book shows that from
Aug. 25 to Aug. 30, the Plaintiff’s operation on Aug. 23 having been the last without relaxants, Dr.
Allfrey always used relaxants. It was said that was because he realised that his previous practice was
wrong. What Dr. Allfrey himself said on that was this:
“Q. - Where there, in that next week, fourteen treatments?
A. - Yes.
Q. - In every case in the week succeeding this unfortunate occurrence every man you
treated had a relaxant.
A. - The reason was because [the Plaintiff] had sustained a fracture and, until I had become
certain in my own mind that there was nothing wrong with my technique, that there was no
7
unknown factor which I had not taken into account, I thought that for the next week or to, at
any rate until the return of Dr. de Bastarrechea when I could discuss it with him, I should
take the added risk perhaps of using a relaxant in order to avoid further fractures.”
If that is true, surely there is nothing in the point that, having had this disaster, Dr. Allfrey checks over
his technique and wants to have an opportunity of discussing the matter with Dr. de Bastarrechea.
Dr. Marshall who gave his evidence with extreme moderation and extremely carefully, and who has
the advantage of unique experience, being deputy superintendent of Netherne Hospital, said that he
agreed that if relaxant drugs were properly given, there was really no risk of fracture, but that he
believed that there were other more serious risks, including the risk to life, which should not be
taken as a matter of routine or lightly, but only if there was a definite reason. Dr. Page, from the
Three Counties Hospital, you will remember, started to use relaxant drugs and then had a distressing
experience when a medical colleague of his died on the operating table whilst under relaxant drugs,
which did not predispose him towards the use of relaxant drugs, but his present practice, he told you,
was to use a relaxant drugs in selected cases where indicated. Dr. Baker from Banstead Hospital
said that relaxant drugs were given only when there was an indication in favour, and not otherwise,
as, for instance, in the case of arthritis. On that body of evidence, is it really open to you to say that
mere failure to give relaxant drugs is itself any evidence of negligence in the case of a medical man?
There is a firm body of opinion against using relaxant drugs as a routine, and all the witnesses agree
that there is this body of opinion, although one (Dr. Randall) prefers to take the risk in using relaxant
drugs and thus eliminate the risk of fractures.
We now come to the question of manual control which arises in this way: It is urged by the Plaintiff
that if one does not use relaxant drugs, which one knows will eliminate all risk of fracture, the least
one can do is to exercise some form of manual control. Manual control was not used here, and this
accident happened. The defendants say that there are two schools of thought: There is a school of
thought, to which they adhere, which believes honestly, on reasonable grounds, that if one hold the
patient down firmly, either with a restraining sheet or by a nurse lying over his body the risk of
fracture is increased. Therefore, since the end of 1951, the Defendants have adopted a new
technique of leaving the patient’s limbs free to move, but at the same time holding him down at the
shoulders and seeing that a nurse stands on either side of the couch ready to catch him if he shows
any sign of falling off.
Dr. Randall was called by the Plaintiff in support of this case on the question of using manual control.
He was quite definitely of the opinion, a personal opinion which he said was shared by others, that
some manual control was necessary. Indeed, that is not disputed by the Defendants.
[HIS LORDSHIP considered the evidence of Dr. Randall on this point. Dr. Randall had said that
although there was a school of thought that restraint was unnecessary, he would not in 1954, have
given electro-convulsive therapy without using some form of restraint; he would not, at that time,
have administered the treatment without precautions, i. e. without using a relaxant drug or some
form of manual control. Further he had thought that it would be unwise in 1954 to give the treatment
without using such precautions, because in his experience fractures occurred when restraint was
not used, but occurred to a very much less extent when it was used. Dr. Randall had agreed that
there was a competent body of medical opinion who believed that the more one restrained a patient,
the more likely there were to be fractures. When asked if he thought that a doctor who had decided
not to use relaxant drugs and who, also, had decided not to use any method of manual control
because he held the view that it increased the risk of fracture, was falling below the level of skill of a
competent practitioner, Dr. Randall had said that his own view was that fractures were more
common if restraint was not used, and he would think such a doctor was being foolhardy in not using
restraint of some sort, and that he was using inadequate precautions; he would think that that doctor
was falling below the ordinary standard of care required of a practitioner. HIS LORDSHIP continued:]
That is the view of a skilled person; you have to form your judgment how far Dr. Randall was merely
expressing a personal view in favour of the practice which he preferred, or to what extent (if at all) he
was condemning the practice advocated by the defendants. But with him, as against him, you have
to weight the whole body of opinion represented by the witnesses called by the Defendants. Dr. de
Bastarrechea was quite definite in his view that since he changed over to the use of no manual
control after 1951, a decision which he took as a matter of clinical judgment, he got the impression
that the fracture risk at any rate had not increased. [HIS LORDSHIP reviewed the evidence afforded
8
by a consideration of figures from the casualty book of Friern Hospital, and referred to the evidence
of Dr. Marshall to whom the figures were put, concluding that Dr. Marshall did not seem to take the
view that there was anything in that list which suggested that the practice adopted at Friern Hospital
was open to criticism. HIS LORDSHIP continued:]
Dr. Allfrey also dealt with this matter. I have not said anything about Dr. Allfrey in detail, though he is,
you have got to bear in mind, primarily the man under attack, for it was during his operation that the
disaster occurred. You have got to form your judgment of Dr. Allfrey, make up your minds whether
you think that he was a careful practitioner interested in his art, giving thought to the different
problems, or whether he was a man who was quite content just to follow the swim. You may recall
that on quite a number of occasions in the course of his evidence he gave instances, where he had
applied his inquiring mind to the problem and had come to a conclusion. On the use of restraint, he
told you that during his training he knew that there was a school of thought that favoured restraint,
but that he got the impression that the general view was against it. He recalls how he was taught
that there was a greater danger of fracture if two ends of a rigid member like a stick were held firm
than if one was left swinging or both were left swinging, and that persuaded him that there was
something in the view that restraint should not be used. At Knole Hospital he adopted under tuition
(and, as he got older, on his own responsibility) the practice of leaving the limbs free to move, merely
holding down the shoulders. When he came to Friern Hospital he found the same practice was being
carried out there by Dr. D Bastarrechea. The question about which you have to make up your minds
is whether Dr. Allfrey, in following that practice, is doing something which no competent medical
practitioner using due care would do, or whether, on the other hand, he is acting in accordance with a
perfectly well recognised school of thought. Dr. Marshall at Netherne Hospital adopts the same
practice. Dr. Baker at Banstead Hospital adopts the same practice. It is true, and in fact interesting
as showing the diversity of practice, that Dr. Page at the Three Counties Hospital, adopts a
modification of that practice, in as much as he prefers to carry out the treatment in bed, with the
patient controlled to some extent by the blanket, sheets and counterpane. That may be of interest
to you as showing the diversity of practice; but it would not be right to take that as a condemnation of
the practice adopted by the Defendants.
That, members of the jury, is all that I have to say on the question of liability; but, before I leave this
question altogether, I think it right to remind you of, or refer you to, what I venture to say were some
very wise words used recently in the Court of Appeal in Roe v. Ministry of Health (2) ([1954] 2 All E.R.
131), a case not dissimilar to this. It was a most tragic case where two men in the prime of life
were submitted to an anaesthetic for, in both cases, some trivial condition requiring operative
treatment and, as the result of a mishap in the anaesthetic, both men came off the operating table
paralysed. After a very long inquiry, the trial judge came to the conclusion that it had not been
established that, by the standard of care and knowledge operating at the time, the anaesthetist was
negligent. The Court of Appeal took the same view, and one finds this in the judgment of
DENNING, LJ. (ibid., at p. 137):
“If the anaesthetists had foreseen that the ampoules might get cracked with cracks that
could not be detected on inspection they would, no doubt, have dyed the phenol a deep blue;
and this would have exposed the contamination. But I do not think their failure to foresee
this was negligence. It is so easy to be wise after the event and to condemn as negligence
that which was only a misadventure. We ought always to be on our guard against it,
especially in cases against hospitals and doctors. Medical science has conferred great
benefits on mankind, but these benefits are attended by considerable risks. Every surgical
operation is attended by risks. We cannot taken the benefits without taking the risks. Every
advance in technique is also attended by risks. Doctors, like the rest of us, have to learn
by experience; and experience often teaches in a hard way. Something goes wrong and
shows up a weakness, and then it is put right. That is just what happened here.”
Then again (ibid., at p. 139)

“One final word. These two men have suffered such terrible consequences that there is a
natural feeling that they should be compensated. But we should be doing a disservice to the
community at large if we were to impose liability on hospitals and doctors for every thing that
happens to go wrong. Doctors would be led to think more of their own safety than of the
good of their patients. Initiative would be stifled and confidence shaken. A proper sense of
proportion requires us to have regard to the conditions in which hospitals and doctors have
9
to work. We must insist on due care for the patient at every point, but we must not condemn
as negligence that which is only a misadventure. “
That concludes what I wish to say on the question of liability.
[HIS LORDSHIP then directed the jury on the question of damages. The jury, having retired and
considered their verdict, found that the defendants were not negligent.]
Judgement for the defendants.
Solicitors : Pennington & Son (for the plaintiff) ; J. Tickle & Co. (for the defendants)
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2004 SCC OnLine Raj 131 : (2004) 4 RLW 2659 : (2005) 25 AIC 529 : 2004
AIHC 4121 : 2006 ACJ 1644 : (2004) 4 WLC 335 : (2005) 1 TAC 373
In the High Court of Rajasthan

(BEFORE SUNIL KUMAR GARG, J.)
State of Rajasthan
Versus
Smt. Shekhu & Ors.
S.B. Civil Misc. Appeal No. 253 of 1996
Decided on July 22, 2004
Motor Vehicles Act, 1988, Sec. 166 — Vicarious liability of state — Doctrine of soverign
immunity — Held — There is no immunity from liability on the ground of soverignty — Suit
for damages for negligence of officers of the state in discharging the statutory duties is
maintainable.
(Paras 25 & 26)
Appeal dismissed.
It can be said that now sovereignty lies with the people and no-one whatsoever may be can say
that he is immuned from the liability and thus, suit for damages for negligence of officers of the
State in discharging the statutory duties is maintainable.
(Para 26)
The maxim “lex non protest preceare” has no place today and now sovereignty vests in the
people and from this point of view, the State is liable for the act done by its employees and there
exists no distinction between sovereign and non-sovereign acts and like ordinary citizen, the State
would be liable for the act done by its employees.
(Para 29)
Case Law Referred:
1. Imperial Chemical Industries Ltd. v. Shatwell (1965 AC 656)
2. Norton v. Canadian Pacific Steamships Ltd. ((1961) 2 ALL ER 785 at p. 790)
3. Storey v. Ashton ((1894) 4 QB 476 at p. 479)
4. Ormrad v. Crosvile Motor Services Ltd. ((1953) 2 ALL ER 753)
5. Pushpabai v. Ranjit Ginning & Pressing Co. (1977 ACJ 343)
6. Subbiah Reddy v. T. Jordon (AIR 1945 PC 168)
7. State of Assam v. Urmila Datta (1974 ACJ 414 (Gau.))
8. State of Rajasthan v. Mst. Vidyawati (AIR 1962 SC 933)
9. Pushpa Thakur v. Union (1984 ACJ 559)
10. N. Nagendra Rao and Co. v. State of Andhra Pradesh (AIR 1994 (SC) 2663)
11. Saheli, a Women's Resources Centre v. Commissioner of Police, Delhi (AIR 1990
(SC) 513)
12. State of Maharashtra v. Kanchanmala Vijay Singh Shirke (AIR 1995 (SC) 2499)
O.P. Boob, for Appellant
Rajesh Panwar, for Respondents No. 1 to 4
The Judgment of the Court was delivered by
SUNIL KUMAR GARG, J.:— The civil misc. appeal under Section 173 of the Motor
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Vehicles Act, 1988 (hereinafter referred to as the Act of 1988) has been filed by the
State of Rajasthan (appellant) against the judgment and award dtd. 25.7.1995 passed
by the learned Judge, Motor Accident Claims Tribunal, Barmer in Claim Case No. 29/93
by which he awarded a sum of 2,36,000/- as compensation to the claimants-
respondents No. 1 to 4 on account of death of Shri Khartha Ram (hereinafter referred
to as the deceased).
2. It arises in the following circumstances:
i) That claimants - respondents No. 1 to 4 filed claim petition on 20.2.1993 before
the Motor Accident Claims Tribunal. Barmer (hereinafter referred to as the
“Tribunal), claiming a sum of Rs. 9,42,000/- as compensation on account of
death of the deceased in the accident alleging inter alia that 20.8.1992 in the
evening, the deceased and his brother Kushla Ram (A.W. 2) were going on
bicycle after doing the job of massion and at that time a jeep No. RJ-04-C/0223
came from opposite direction which was being driven by respondent No. 5 Achla
Ram and belonging to the Distt. Collector, Barmer and hit the bicycle as a result
of which khartha Ram died in the hospital.
ii) That the appellant filed reply to the claim petition and after filing reply, the
learned Tribunal framed 4 issues.
iii) That the learned Tribunal after recording evidence and after hearing the parties,
passed the award dtd. 25.7.1995 in the manner as stated above.
iv) Aggrieved from the judgment and award dtd. 25.7.95, this appeal has been
preferred by the appellant.
3. In this appeal, following submissions have been raised by the learned counsel for
the appellant:
i) That at the time of accident, the jeep in question was not being driven by the
respondent No. 5 Achla Ram and no accident had taken place with the jeep in
question and thus, the findings on issue No. 1 are liable to be quashed and set
aside.
ii) That the State Government is not liable for the tortious act committed by Achla
Ram (respondent No. 5) as at the time of accident, the jeep was not being used
for Government work and thus, the findings on issue No. 3 are liable to be
quashed and set aside.
iii) The learned counsel for the appellant has also challenged the findings on issue
No. 2 and it has been submitted by him that the compensation to the tune of Rs.
2,36,000/- which was awarded by the learned Tribunal is excessive in nature and
the same may be reduced accordingly.
4. On the other hand, the learned counsel for the respondents have supported the
impugned judgment and award passed by the Tribunal. The respondents No. 1 to 4
have also submitted crossobjection for enhancement of amount of compensation.
POINT NO. 1.
5. So far as point No. 1 is concerned, the learned Tribunal has framed issue No. 1
which pertained as to whether the accident had taken place with the jeep No. RJ-04-
C/0223 or not and it was decided in favour of the respondents - claimants after
discussing the evidence on record. Apart from this, there is ample evidence in this
case. Ex. 1 is the FIR which shows that accident had taken place with the jeep and Ex.
2 is the challan which was filed against the respondent No. 5 and Ex. 9 is the
mechanical inspection report of the jeep in question which shows that there were signs
of accident on the jeep in question and hence to say that no accident had taken place
with the jeep in question cannot be accepted and apart from this, the learned Tribunal
has discussed the evidence in detail on this issue and has come to the conclusion that
the accident had taken place by the jeep in question and therefore, the issue No. 1
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was rightly decided by the learned Tribunal and findings on issue No. 1 do not suffer
from basic infirmity or illegality and the same are liable to be confirmed one and the
point No. 1 raised by the learned counsel for the appellant stands rejected.
POINT NO. 2
6. So far as point No. 2 is concerned, the Tribunal has framed issue No. 3 in this
respect which reads as under:
“Whether on 19.8.92 after 12 noon, the jeep in question was not being used for
government work and therefore, the State Government was not responsible for
paying any compensation?”
7. On this issue, the learned Tribunal gave the finding stating that burden of
proving that issue was on the appellant and no evidence was led by the appellant and
it was further observed by the learned Tribunal that on the contrary from the evidence
of the claimants - respondents it has been proved that on 20.8.92, the jeep in
question was being driven by Achla Ram (respondent No. 5) negligently and because
of rash and negligent driving by respondent No. 5, the accident had taken place which
resulted in death of the deceased and so far as the fact whether at the time of
accident, jeep in question was being used for government work or not is concerned,
since for that there was no evidence on the part of the appellant, therefore, the
learned Tribunal came to the conclusion that the appellant had failed to prove that fact
and thus, this issue was decided in favour of the claimants - respondents and against
the appellant. The findings on issue No. 3 have been challenged by the learned
counsel for the appellant.
8. Before proceedings further and examining the findings on issue No. 3, position of
law in respect of vicarious liability and sovereign liability has to be seen.
VICARIOUS LIABILITY, ITS MEANING
9. “Vicarious liability” means that one person takes or supplies the place of another
so far as liability is concerned. This phrase means the liability of a person for the tort
of another in which he had no part. A master is jointly and severally liable for any tort
committed by his servant which acting in the course of his employment.
CONCEPT OF VICARIOUS LIABILITY
10. It is settled and undisputed principle of the law of Torts that master is
answerable for every such wrong of his servant as is committed in the course of his
service, though no express command or privity of the master be proved and the
wrongful act may not be for the master's benefit. In fact, there is a catena of authority
even for the proposition that although the particular act which gives the cause of
action may not be authorised, still, if the act is done in course of employment which is
authorised, the master is liable. This doctrine of liability of the master for the acts of
his servant is based on the maxim respondent superior, which means “let the principal
be liable” and it puts the master in the same position as if he had done the act
himself. It also derives validity from the maxim qui facit per alium facit per se, which
means ‘he who does an act through another is deemed in law to do it himself.’
11. “The doctrine of vicarious liability” said Lord Pearce in Imperial Chemical
Industries Ltd. v. Shatwell (1), “has not grown from any very clear, logical or legal
principle but from social convenience and rough justice.”
12. Even when the owner of the motor vehicle is involved in an accident is not
directly negligent, still he becomes liable to pay the compensation to the claimants if
they show that the accident has been caused due to the negligence of the driver or
some other servant of the owner. Such liability is called vicarious liability where under
common law the master becomes liable for the negligent actions of his servants
carried out in the course of their normal duties.
13. Thus, it can be said that:
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i) An owner of a car would be liable in damages for an accident caused by his

servant in the course of his employment.
ii) He would also be liable if the effective cause of the accident was that the driver
in the course of his employment committed a breach of his duty in either not
preventing another person from driving the car or neglecting to see that the said
person drove it properly.
VICARIOUS LIABILITY IN MOTOR ACCIDENT CASES
14. The general principle is well settled and it is neatly given by Pearson, LJ, in
Norton v. Canadian Pacific Steamships Ltd., (2), thus:
“The owner of a car, when he takes or sends it on a journey for his own purposes,
owes a duty of care to other road users, and if any of them suffers damage from
negligent driving of the car, whether by the owner himself or by an agent to whom
he had delegated the driving, the owner is liable.”
15. The limitation on this principle has been succinctly stated by Cockburn, CJ in
Storey v. Ashton (3), thus:
“The true rule is that the master is only responsible so long as the servant can be
said to be doing the act, in the doing of which he is guilty of negligence, in the
course of his employment as servant.”
Lush, J. put it:
“The question in all such cases as the present is whether the servant was going
that which the master employed him to do.”
16. Lord Denning observed in Ormrad v. Crosvile Motor Services Ltd., (4).
“It has often been supposed that the owner of a vehicle is only liable for the
negligent of the driver if that driver is his servant acting in the course of his
employment. This is not correct. The owner is also liable if the driver is, with the
owner's consent, driving the car on the owner's business or for the owner's
purpose… … The law puts an especial responsibility on the owner of a vehicle who
allows it to go on the road in charge of someone else, his friend, or anyone else. It
is being used wholly or partly on the owner's business or for the owner's purpose,
the owner is liable for any negligence on the part of the driver. The owner merely
escapes liability when he lends it or hires it to a third person to be used for purpose
in which the owner has no interest or concern.”
COURSE OF EMPLOYMENT
17. The Hon'ble Supreme Court in Pushpabai v. Ranjit Ginning & Pressing Co. (5),
has approved the statement of Lord Lenning which somewhat expanded and liberalised
the idea that the owner is not only liable for the negligence of the driver if that driver
is his servant acting in the course of the employment but also when the driver is with
the owner's consent, driving the car on the owner's business or for the owner's
purposes. Whatever might be the law on this subject in earlier days, both the concepts
of “scope of employment” and the law as to obligations towards trespassers have
undergone radical changes. The Hon'ble Supreme Court observed in Pushpabai v.
Ranjit Ginning & Pressing Co. Pvt. Ltd. (supra).
“Before we conclude, we would like to point out that the recent trend in law is to
make the master liable for acts which do not strictly fall within the term ‘in the
course of employment’ as ordinarily understood.”
18. Keeping in view the above proposition of law, the matter can be concluded in
the following manner:
i) What emerges, therefore, is that the act of the driver viewed in the background
and as part of all the surrounding circumstances, cannot be isolated from the
course of employment or the course of the master's work.
ii) Even a careless act or mistake of a servant in the course of employment fastens
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liability on the master. This apart, when a servant does an act which he is only
conditionally authorised to do, without or beyond the conditions, the master or
employer is liable for the wrongful act. The mere fact that the driver had
consumed liquor against rules contrary to the terms of contract would not
exempt the master from liability.
iii) Thus, principle of vicarious liability is applicable in motor accident cases.
19. The above proportions of law find place in number of cases including a Privy
Council decision in Subbiah Reddy v. T. Jordon (6), and State of Assam v. Urmila
Datta (7).
DOCTRINE OF SOVEREIGN IMMUNITY - APPLICABILITY TO CLAIMS UNDER THE M.V.
ACT:
20. The doctrine of sovereign immunity is based on the common law principle that
the king commits no wrong. Accordingly, it was not possible to sue the crown in tort,
either for wrongs which it had expressly authorised or for wrongs committed by its
servant in the course of their employment.
21. The point as to how far the State was liable in tort first directly arose before the
Hon'ble Supreme Court in State of Rajasthan v. Mst. Vidyawati (8). In that case, the
claim for damages was made by the dependants of a person who died in an accident
caused by the negligence of the driver of a jeep maintained by the Government for
official use of the Collector of Udaipur while it was being brought back from the
workshop after repairs. The Rajasthan High Court took the view that the State was
liable, for the State is in no better position in so far as it supplies cars and keeps
drivers for its Civil Service. In the case of State of Rajasthan v. Mst. Vidyawati (supra),
Hon'ble Supreme Court has held as under:
“Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”
22. Thus, it can be said that the Hon'ble Supreme Court made the position clear
that there was no justification, in principle or in public interest, that the State should
not be held liable vicariously for the tortious act of its servant.
23. The Hon'ble Supreme Court in the case of Pushpa Thakur v. Union (9), has held
that the doctrine of sovereign immunity has no application so far as claims for
compensation under the Motor Vehicles Act are concerned. That apart, after the
amending Act 100 of 1956, by which s. 110A of the Motor Vehicles Act, 1939, was
inserted, the distinction of sovereign and non-sovereign acts of the State no longer
existed as all owners of vehicles were brought within the scope of that section. Sec.
166 of the new Act of 1988 reproduces Sec. 110A of the old Act. Whether the State is
bound by the provisions of the Motor Vehicles Act is no longer res integra.
24. Thus, the Hon'ble Supreme Court has set at rest all the conflicts and distinction
between sovereign and non-sovereign acts no longer exists.
25. Further more, the Hon'ble Supreme Court in the case of N. Nagendra Rao and
Co. v. State of Andhra Pradesh (10), has observed that maxim lex non protest peceare
that is the King can do no wrong has no place and has held as under:
“Sovereignty” and “acts of State” are thus two different concepts. The former
vests in a person or body which is independent and supreme both externally and
internally whereas latter may be act done by a delegate of sovereign within the
limits of power vested in him which cannot be questioned in a Municipal Court. The
nature of power which the East India Company enjoyed was delegation of the ‘act of
State’. An exercise of political power by the State or its delegate does not furnish
any cause of action for filing a suit for damages or compensation against the State
for negligence of its officers. Reason is simple. Suppose there is war between two
countries or there are outbreak of hostilities between two independent States in
course of which a citizen suffers damage. He cannot sue for recovery of the loss in
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local Courts as the jurisdiction to entertain such suit would be barred as the loss
was caused when the State was carrying on its activities which are politically and
even jurisprudentially known ‘acts of State’. But that defence is not available when
the State or its officers act negligencly in discharge of their statutory duties.
That a part, the doctrine of sovereign immunity has no relevance in the present
day context when the concept of sovereignty itself has undergone drastic change.
Further, whether there was any sovereign in the traditional sense during British rule
of our country was not examined by the Bench in Kasturi Lal (supra), though it
seems it was imperative to do so, as the Bench in Vidhyavati (supra), had not only
examined the scope of Article 300 of the Constitution, but after examining the
legislative history had observed.
The old and archaic concept of sovereignty thus does not survive. Sovereignty
now vests in the people… …. .
But there the immunity ends. No civilised system can permit an executive to
play with the people of its country and claim that it is entitled to act in any manner
as it is sovereign. The concept of public interest has changed with structural change
in the society. No legal or political system today can place the State above law as it
is unjust and unfair for a citizen to be deprived of his property illegally by negligent
act of officers of the State without any remedy… … … .”
26. Thus, it can be said that now sovereignty lies with the people and no-one
whatsoever may be can say that he is immuned from the liability and thus, suit for
damages for negligence of officers of the State in discharging the statutory duties is
maintainable.
27. The Hon'ble Supreme Court in the case of Saheli, a Women's Resources Centre
v. Commissioner of Police, Delhi (11), has held that the State would be liable to pay
compensation for tortious act of its employees.
28. The Hon'ble Supreme Court in the case of State of Maharashtra v. Kanchanmala
Vijay Singh Shirke (12), has observed that if the vehicle was used in connection with
the affairs of the State and for official purpose, the State cannot escape its vicarious
liability to pay compensation to the heirs of the victim on the ground that it had never
authorised the clerk to drive the vehicle.
29. In view of the above proposition of law, the maxim “lex non protest preceare”
has no place today and now sovereignty vests in the people and from this point of
view, the State is liable for the act done by its employees and there exists no
distinction between sovereign and non-sovereign acts and like ordinary citizen, the
State would be liable for the act done by its employees.
30. Applying the above principle to the facts of the present case, since jeep in
question was being driven by the respondent No. 5 (Achla Ram) who was under the
employment of Collector, Barmer and the jeep was belonging to the Collector, Barmer
(State Government) therefore, the State would be liable for the act done by Achla Ram
(respondent No. 5) and the State cannot plead any immunity for that and thus, the
learned Tribunal has rightly decided issue No. 3 and point No. 2 raised by the learned
counsel for the appellant also stands rejected and findings on issue No. 3 recorded by
the learned Tribunal are liable to be confirmed one.
POINT NO. 3.
31. On point of compensation, it may be stated that there is no dispute on the
point that at the time of accident, the deceased was only 20 years of age and learned
Tribunal has observed that he would have been earning Rs. 60/- per day and out of
Rs. 60/-, the deceased was spending Rs. 20/- on himself and Rs. 40/- was to be given
by him to his parents and thus, the learned Tribunal came to the conclusion that loss
of dependency was Rs. 40/- per day and in this way, loss of dependency was Rs.
1200/- per month and he applied the multiplier of 15 years after taking into
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consideration the age of parents of the deceased and thus, the learned Tribunal came
to the conclusion that respondents were entitled to Rs. 2,36,000/- as compensation
and in my considered opinion the amount of compensation awarded by the learned
Judge, Motor Accident Claims Tribunal in favour of the claimants - respondent No. 1 to
4 appears to be just and reasonable and has been passed after taking into
consideration all the aspects of case and thus it cannot be said that the award passed
by the learned Tribunal is arbitrary and hence, the prayer for reduction of amount of
compensation made by the learned counsel for the appellant stands rejected.
CROSS-OBJECTIONS
32. So far as cross-objections filed by the respondents - claimants for enhancement
of amount of compensation on 15.7.97 are concerned, when the amount of
compensation awarded by the learned Tribunal has been found to be just and
reasonable in para 31, hence, the prayer for enhancement of the amount of
compensation made by the claimants - respondents No. 1 to 4 cannot be appreciated
and deserves to be rejected. Point No. 3 is decided accordingly.
33. For the reasons mentioned above, the judgment and award dtd. 25.7.1995
passed by the learned Judge, Motor Accident Claims Tribunal do not suffer from any
basic infirmity or illegality and hence the same do not require any interference by this
Court and this misc. appeal deserves to be dismissed.
Accordingly, the present misc. appeal is dismissed after affirming the judgment
and award dtd. 25.7.1995 passed by the learned Judge, Motor Accident Claims
Tribunal, Barmer and the cross-objections filed by the respondents No. 1 to 4 -
claimants are also rejected.
———
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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1990 SCC OnLine NCDRC 35 : (1992) 1 CPJ 66 (NC) : (1991) 1 CPR 610 (NC)
In the National Consumer Disputes Redressal Commission†

(BEFORE V. BALAKRISHNA ERADI, PRESIDENT AND A.S. VIJAYAKAR, MEMBER, Y. KRISHAN,
MEMBER AND DR. RAIS AHMED, MEMBER)
M.K. Gupta … Appellant;

Versus
Lucknow Development Authority … Respondent.
First Appeal No. 21, and 24 of 1990
Decided on July 13, 1990
The Order of the Court was delivered by
Y. KRISHAN, MEMBER:— The Appeal No. 1 is an appeal against the Order of 15th
February, 1990 in State Commission Case No. 37/SC/89 on the complaint of Shri M.K.
Gupta, appellant here.
2. The Appeal No. 2 is also an appeal against the Order of the State Commission of
the same date in the same case No. 37/SC/89.
3. In the Appeal No. 1, the Appellant Shri M.K. Gupta who appealed against the
quantum of reliefs granted to him by the State Commission.
4. The findings of the State Commission were that the Complainant/Appellant had
been allotted a MIG house by the Respondent Lucknow Development Authority against
cash payment of Rs. 1,13,197/- which he had deposited in full by the 29th of July,
1988. The Opposite Party-the Respondent here-had undertaken to deliver possession
of the house to the Appellant and get the transfer of the house registered on payment
of the full amount as calculated by the Lucknow Development Authority. The house
was also registered in the name of the allottee Appellant on 18th August, 1988.
However, the Respondent did not give the possession of the house to the Appellant
because the construction work in the said house had not been completed.
5. During the course of hearing before this Commission the appellant explained that
there were material deficiencies in the house allotted to him and registered in his
name viz., the electrical work had not been done, water supply fittings had not been
installed, the doors and windows had not been fixed, the walls had not been plastered
etc. According to him, the house was merely a shell and not fit for occupation and
habitation.
6. The Order of the State Commission also found that the delay in the completion of
the construction work of the house was due to internal managerial problems of the
Respondent Lucknow Development Authority and that the Complainant Appellant was
not in any way responsible for the same.
7. The appellant averred during the hearing that he had still not been given the
possession of the house as the construction work had not been completed. We have,
therefore, examined the adequacy of the reliefs granted by the State Commission in
the light of the above facts.
8. The State Commission has ordered that the Respondent Lucknow Development
Authority would pay interest at the rate of 12% per annum from 1.1.1989 to
15.2.1990 to the Complainant/Appellant. The State Commission allowed a period of
little over 4 months to the Respondent Lucknow Development Authority to give
possession of the house to the appellant after the date of registration, viz., 18th
August, 1988.
9. This Commission feels that it was obligatory on the part of the Respondent
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Lucknow Development Authority to have transferred the possession of the house

complete in all respects immediately after the house was registered in the name of the
appellant who had already made the payment in full. There was no justification for this
delay and if the Respondent Lucknow development Authority had any internal
problems which led to the delay in completing the construction work of the house, the
Complainant/Appellant cannot be made to suffer for the same.
10. Again the Lucknow Development Authority recovers interest at the rate of 16%
on defaults in the amounts payable to it. In fairness, therefore, the rate of interest
that should be allowed to the Complainant/appellant must be the same namely 16%.
11. The interest should be allowed upto the date of the handing over of possession
of the house to the Complainant/appellant and not merely upto 15th Febrary, 1990.
12. Since the house is incomplete and an architect, who according to the appellant
is on the approved panel of the Lucknow Development Authority, has estimated in
October, 1989 the cost of completing the rest of the construction work at Rs. 44,615/-,
the said amount should be paid to the Complainant/appellant by the Respondent
Lucknow Development Authority. It is to be noted that the architect's estimate is
already 8 months old.
13. Since the Respondent Lucknow Development Authority has not been able to
complete the construction work in the house since August 1988 and the
Complainant/appellant has been put to great hardship by reason of his not being able
to take possession of the house allotted and registered in his favour, the Commission
directs that the Respondent Lucknow Development Authority should hand over the
possession of the house in ‘as is where is’ condition to the Complainant/appellant by
not later than 31st July, 1990.
14. The Complainant/appellant has also claimed compensation for having suffered
harassment, mental torture and agony due to the failure of the Respondent Lucknow
Development Authority in giving possession of the house duly completed after he
made the payment in full and got it registered in his name on 18th of August, 1988.
Cosidering the period for which he had to suffer without getting possession of the
house, this Commission considers a compensation of Rs. 10,000/- would be just, fair
and reasonable.
15. The findings of the State Commission are confirmed but the reliefs granted are
modified to the extent as set out above.
16. As regards Appeal No. 2 Lucknow Development Authority v. Shri M.K. Gupta,
this Commission finds no merit on the preliminary question of maintainability of the
complaint under the Consumer Protection Act. This has already been decided in the
First Appeal No. 5 of 1989 Garima Shukla v. U.P. Avas Evam Vikas Parishad. We,
therefore, uphold the decision of the State Commission on the preliminary objection
raised by Respondent Lucknow Development Authority and dismiss this appeal.
Appeal dismissed.
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† New Delhi Bench
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1964 SCC OnLine SC 38 : (1965) 1 SCR 375 : AIR 1965 SC 1039 :

(1965) 2 Cri LJ 144 : (1966) 2 LLJ 583
In the Supreme Court of India

(BEFORE P.B. GAJENDRAGADKAR, C.J. AND K.N. WANCHOO, M. HIDAYATULLAH,
RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.)
KASTURI LAL RALIA RAM JAIN … Appellant;

Versus
STATE OF UTTAR PRADESH … Respondent.
Civil Appeal No. 105 of 1963* , decided on September 29, 1964
Advocates who appeared in this case:
M.S.K. Sastri, Advocate and M.S. Narasimhan, Advocate for P.
Keshva Pillai, Advocate, for the Appellant;
A.V. Viswanatha Sastri, Senior Advocate, (O.P. Rana, Advocate, with
him), for the Respondent.
The Judgment of the Court was delivered by
P.B. GAJENDRAGADKAR, C.J.— The short question of law which arises
in this appeal is whether the respondent, the State of Uttar Pradesh, is
liable to compensate the appellant, M/s Kasturilal Ralia Ram Jain for the
loss caused to it by the negligence of the police officers employed by
the respondent. This question arises in this way. The appellant is a firm
which deals in bullion and other goods at Amritsar. It was duly
registered under the Indian Partnership Act. Ralia Ram was one of its
partners. On 20th September, 1947 Ralia Ram arrived at Meerut by the
Frontier Mail about midnight. His object in going to Meerut was to sell
gold, silver and other goods in the Meerut market. Whilst he was
passing through the Chaupla Bazar with this object, he was taken into
custody by three police constables. His belongings were then searched
and he was taken to Kotwali police station. He was detained in the
police lock-up there and his belongings which consisted of gold,
weighing 103 tolas 6 mashas and 1 ratti, and silver weighing 2 maunds
and 6½ seers, were seized from him and kept in police custody. On
21st September, 1947 he was released on bail, and some time
thereafter the silver seized from him was returned to him. Ralia Ram
then made repeated demands for the return of the gold which had been
seized from him, and since he could not recover the gold from the
police officers, he filed the present suit against the respondent in which
he claimed a decree that the gold seized from him should either be
returned to him, or, in the alternative, its value should be ordered to be
paid to him. The alternative claim thus made by him consisted of Rs
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11,075-10-0 as the price of the gold and Rs 355 as interest by way of

damages as well as future interest.
2. This claim was resisted by the respondent on several grounds. It
was urged that the respondent was not liable to return either the gold,
or to pay its money value. The respondent alleged that the gold in
question had been taken into custody by one Mohammad Amir, who
was then the Head Constable, and it had been kept in the police
Malkhana under his charge. Mohd. Amir, however, misappropriated the
gold and fled away to Pakistan on 17th October, 1947. He had also
misappropriated some other cash and articles deposited in the
Malkhana before he left India. The respondent further alleged that a
case under Section 409 of the Indian Penal Code as well as Section 29
of the Police Act had been registered against Mohd. Amir, but nothing
effective could be done in respect of the said case because in spite of
the best efforts made by the police department, Mohd. Amir could not
be apprehended. Alternatively, it was pleaded by the respondent that
this was not a case of negligence of the police officers, and that even if
negligence was held proved against the said police officers, the
respondent State could not be said to be liable for the loss resulting
from such negligence.
3. On these pleadings, two substantial questions arose between the
parties; one was whether the police officers in question were guilty of
negligence in the matter of taking care of the gold which had been
seized from Ralia Ram, and the second was whether the respondent
was liable to compensate the appellant for the loss caused to it by the
negligence of the public servants employed by the respondent. The trial
court found in favour of the appellant on both these issues, and since
the gold in question could not be ordered to be returned to the
appellant, a decree was passed in its favour for Rs 11,430-10-0.
4. The respondent challenged the correctness of this decree by an
appeal before the Allahabad High Court and it was urged on its behalf
that the trial court was in error in regard to both the findings recorded
by it in favour of the appellant. These pleas have been upheld by the
High Court. It has found that no negligence had been established
against the police officers in question and that even if it was assumed
that the police officers were negligent and their negligence led to the
loss of gold, that would not justify the appellant's claim for a money
decree against the respondent. The appellant then moved for and
obtained a certificate from the said High Court and it is with the said
certificate that it has come to this Court by an appeal. On behalf of the
appellant, Mr M.K. Sastri has urged that the High Court was in error in
both the findings recorded by it in favour of the respondent. The first
finding is one of fact and the second is one of law.
5. In dealing with the question of negligence, it is necessary to refer
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to the evidence adduced in this case. The material facts leading to the
seizure of gold are not in dispute. The only question which calls for our
decision on this part of the case is whether the loss of gold can be
legitimately attributed to the negligence of the police officers in charge
of the police station where the gold and silver had been kept in
custody. Ganga Prasad is the first witness to whose evidence it is
necessary to refer. He was Class II Officer in Meerut Kotwali at the
relevant time. He swears that Mohammad Amir who was in charge of
the Malkhana, had fled away to Pakistan without delivering the keys to
anyone and without obtaining permission for leaving his post of duty.
The Malkhana was accordingly checked and it disclosed that
considerable properties kept in the Malkhana were missing. On 26th
October, 1947, Ganga Prasad returned the silver articles to the
appellant. Gold was, however, not found in the Malkhana, and so, it
could not be returned to it. Ganga Prasad then refers to the
investigation carried out against Mohd. Amir for an offence of
misappropriation and his evidence shows that Mohd. Amir had
absconded, and since the police department was unable to apprehend
him from Pakistan, the investigation in question became ineffective.
According to this witness, the silver and gold of the appellant had not
been attached in his presence. He admits that the appellant remained
in the Malkhana of the Kotwali. No list of these goods was forwarded to
any officials. This witness further added that valuables are generally
kept in the wooden box and the key is kept by the officer in charge of
Malkhana. The gold and silver articles seized from the appellant had not
been kept in that box in his presence. He could not explain why the
said gold and silver articles were not kept in the Treasury.
6. The next witness is Mohd. Umar. He was Sub-Inspector II in the
Kotwali in September 1947. He swears to the seizure of the gold and
silver articles from Ralia Ram and deposes to the fact that they were
not kept in the Malkhana in his presence. Both the arrested persons and
the seized articles were left in charge of the Head Constable who had
been instructed by Mohd. Umar to keep the goods in the Malkhana. This
witness admitted that no list was prepared of the seized goods and he
was not able to say whether proper precautions were taken to
safeguard the goods in the Malkhana.
7. The third witness is Agha Badarul Hassan. He was station officer
of the police station in question in September, 1947. He sweors that it
was a routine requirement that every day in the morning one Sub-
Inspector had to inspect the Malkhana under his order. He knew that
Ralia Ram had been kept in the lock-up and his articles were kept in
the Malkhana, but he added that in his presence these articles were
neither weighed nor kept in the Malkhana. He claims to have checked
up the contents of the Malkhana, but he conceded that he had made no
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note about this check in the Diary. He purported to say that when he
checked the Malkhana, gold and silver were there. He kept the
valuables in the Malkhana without any further instructions from the
officers, and he was not present when they were kept in the box. This
witness claims that valuables are not sent by the police officers to the
Treasury unless they got orders to that effect. That is the whole of the
material evidence bearing on the question of negligence of the police
officers.
8. In appreciating the effect of this evidence, it is necessary to refer
to some of the relevant provisions in regard to the custody of the goods
seized in the course of police investigation. Section 54(1)(iv) of the
Code of Criminal Procedure provides that any police officer may,
without an order from a Magistrate and without a warrant, arrest any
person in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected
of having committed an offence with reference to such thing. It is
under this provision that Ralia Ram was arrested at midnight. It was
apprehended by the police officers that the gold and silver articles
which he was carrying with him might be stolen property, and so, his
arrest can be said to be justified under Section 54(1)(iv). Section 550
confers powers on police officers to seize property suspected to be
stolen. It provides, inter alia, that any police officer may seize property
which may be suspected to have been stolen; and so, gold and silver in
the possession of Ralia Ram were seized in exercise of the powers
conferred on the police officers under Section 550 of the Code. After
Ralia Ram was arrested and before his articles were seized, he was
searched, and such a search is justified by the provisions of Section 51
of the Code. Having thus arrested Ralia Ram and searched his person
and seized gold and silver articles from him under the respective
provisions of the code, the police officers had to deal with the question
of the safe custody of these goods. Section 523 provides for the
procedure in that behalf. It lays down, inter alia, that the seizure by
any police officer of property taken under Section 51 shall be forthwith
reported to a Magistrate, who shall make such order as he thinks fit
respecting the disposal of such property or the delivery of such property
to the person entitled to the possession thereof, or, if such person
cannot be ascertained, respecting the custody and production of such
property. These are the relevant provisions of the Code in respect of
property seized from a person who has been arrested on suspicion that
he was carrying stolen property.
9. That takes us to the U.P. Police Regulations. Chapter XIV of these
Regulations deals with the custody and disposal of property. Regulation
165 provides a detailed procedure for dealing with the disposal of
movable property of which the police takes possession. It is not
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necessary to refer to these provisions; it would be enough to state that

these provisions indicate that when property is seized by the police
officers, meticulous care is required to be taken for making a proper list
of the property seized, describing it, weighing it, and taking all
reasonable steps to ensure its safety. Clause (5) of Regulation 165
provides that when the property consists of gold, silver, jewellery or
other valuables, it must be sent in a sealed packet after being weighed,
and its weight must be noted in the general diary and on the list which
accompanies the packet. It requires that a set of weights and scales
should be kept at each police station. Regulation 166 is important for
our purpose. It reads thus:
“Unless the Magistrate otherwise directs, property of every
description, except cash exceeding Rs 100 and property of equal
value and property pertaining to cases of importance, which will be
kept by the Prosecuting Inspector in a separate box under lock and
key in the treasury, will remain in the custody of the malkhana
moharrir under the general control and responsibility of the
Prosecuting inspector until it has been finally disposed of.”
The wording of the Regulation is somewhat complex and confusing, but
its purport and meaning are clear. In substance, it provides that
property of every description will remain in the custody of the malkhana
moharrir under the general control and responsibility of the Prosecuting
Inspector until it has been finally disposed of. This provision is subject
to the instructions to the contrary which the Magistrate may issue. In
other words, unless the Magistrate directs otherwise, the normal rule is
that the property should remain in the Malkhana. But this rule does not
apply to cash exceeding Rs 100 and property of equal value and
property pertaining to cases of importance. Property falling under this
category has to be kept by the Prosecuting Inspector in a separate box
under lock and key in the treasury. If the Magistrate issues a direction
that property not falling under this category should also be kept in the
treasury, that direction has to be followed and the property in such a
case cannot be kept in the custody of the malkhana moharrir. It is thus
clear that gold and silver which had been seized from Ralia Ram had to
be kept in a separate box under lock and key in the Treasury; and that
admittedly, was not done in the present case. It is in the light of the
provisions contained in Regulation 166 that we have to appreciate the
oral evidence to which we have already referred. Unfortunately, in
dealing with Regulations 165(5) and 166, the High Court has
erroneously assumed that there was no obligation on the police officers
to deposit Ralia Ram's property in the Treasury. This conclusion is
apparently due to the fact that the words used in Regulation 166 are
not as clear as they should be and their effect has been misconstrued
by the High Court. It is in the light of this position that the oral
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evidence in the case has to be considered.

10. Thus considered, there can be no escape from the conclusion
that the police officers were negligent in dealing with Ralia Ram's
property after it was seized from him. Not only was the property not
kept in safe custody in the treasury, but the manner in which it was
dealt with at the Malkhana shows gross negligence on the part of the
police officers. A list of articles seized does not appear to have been
made and there is no evidence that they were weighed either. It is true
that the respondent's case is that these goods were misappropriated by
Head Constable Mohd. Amir; but that would not assist the respondent
in contending that the manner in which the seized property was dealt
with at the police station did not show gross negligence. Therefore, we
are satisfied that the trial court was right in coming to the conclusion
that the loss suffered by the appellant by the fact that the gold seized
from Ralia Ram has not been returned to it, is based on the negligence
of the police officers employed by the respondent; and that raises the
question of law which we have set out at the commencement of our
judgment.
11. Mr M.S.K. Sastri for the appellant has argued that once he is
able to establish negligence of the police officers, there should be no
difficulty in our decreeing the appellant's claim against the respondent,
because he urges that in passing a decree against the respondent in
the present case, we would merely be extending the principle
recognised by this Court in State of Rajasthan v. Vidhyawati1 . In that
case, Respondent 1's husband and father of minor Respondent 2 had
been knocked down by a Government jeep car which was rashly and
negligently driven by an employee of the State of Rajasthan. The said
car was, at the relevant time, being taken from the repair shop to the
Collector's residence and was meant for the Collector's use. A claim was
then made by the respondents for damages against the State of
Rajasthan and the said claim was allowed by this Court. In upholding
the decision of the High Court which had granted the claim, this Court
observed that the liability of the State for damages in respect of a
tortious act committed by its servant within the scope of his
employment and functioning as such was the same as that of any other
employer. In support of this conclusion, this Court observed that the
immunity of the Crown in the United Kingdom on which basically the
State of Rajasthan resisted the respondents' claim, was based on the
old feudalistic notions of justice, namely, that the King was incapable of
doing a wrong, and, therefore, of authorising or instigating one, and
that he could not be sued in his own courts. Such a notion, it was said,
was inconsistent with the Republican form of Government in our
country, particularly because in persuit of their welfare and socialistic
objectives, States in India undertook various industrial and other
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activities and had to employ a large army of servants. That is why it

was observed that there would be no justification, in principle, or in
public interest, why the State should not be held liable vicariously for
the tortious acts of its servants. It is on these observations that Mr M.K.
Sastri relies and contends that the said observations as well as the
decision itself can be easily extended and applied to the facts in the
present case.
12. It must be conceded that there are certain observations made in
the case of State of Rajasthan1 which support Mr Sastri's argument and
make it prima facie attractive. But, as we shall presently point out, the
facts in the case of the State of Rajasthan1 fall in a category of claims
which is distinct and separate from the category in which the facts in
the present case fall; and that makes it necessary to examine what the
true legal position is in regard to a claim for damages against the
respondent for loss caused to a citizen by the tortious acts of the
respondent's servants.
13. This question essentially falls to be considered under Article 300
(1) of the Constitution. This article reads thus:
“The Government of India may sue or be sued by the name of the
Union of India and the Government of a State may sue or be sued by
the name of the State and may, subject to any provisions which may
be made by Act of Parliament or of the Legislature of such State
enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this
Constitution had not been enacted.”
It would be noticed that this article consists of three parts. The first
part deals with the question about the form and the cause-title for a
suit intended to be filed by or against the Government of India, or the
Government of a State. The second part provides, inter alia, that a
State may sue or be sued in relation to its affairs in cases like those in
which a corresponding Province might have sued or been sued if the
Constitution had not been enacted. In other words, when a question
arises as to whether a suit can be filed against the Government of a
State, the enquiry has to be : could such a suit have been filed against
a corresponding Province if the Constitution had not been passed? The
third part of the article provides that it would be competent to the
Parliament or the Legislature of a State to make appropriate provisions
in regard to the topic covered by Article 300(1). Since no such law has
been passed by the respondent in the present case, the question as to
whether the respondent is liable to be sued for damages at the instance
of the appellant, has to be determined by reference to another question
and that is, whether such a suit would have been competent against
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the corresponding Province.

14. This last enquiry inevitably takes us to the corresponding
preceding provisions in the respective Constitution Acts of India; they
are Section 65 of the Government of India Act, 1958, Section 32 of the
Government of India Act, 1915 and Section 176 of the Government of
India Act, 1935. It is unnecessary to trace the pedigree of this
provision beyond Section 65 of the Act of 1858, because the relevant
decisions bearing on this point to which we will presently refer, are
ultimately found to be based on the effect of the provisions contained in
the said section. For convenience, let us cite Section 65 at this stage:
“The Secretary of State in Council shall and may sue and be sued
as well in India as in England by the name of the Secretary of State
in Council as a body corporate; and all persons and bodies politic
shall and may have and take the same suits, remedies and
proceedings, legal and equitable, against the Secretary of State in
Council of India as they could have done against the said Company;
and the property and effects hereby vested in Her Majesty for the
purposes of the Government of India, or acquired for the said
purposes, shall be subject and liable to the same judgments and
executions as they would while vested in the said Company have
been liable to in respect of debts and liabilities lawfully contracted
and incurred by the said Company.”
The first decision which is treated as a leading authority on this point
was pronounced by the Supreme Court at Calcutta in 1861 in the case
of the Peninsular and Oriental Steam Navigation Company v. Secretary
of State for India2 . It is a remarkable tribute to the judgment
pronounced by Chief Justice Peacock in that case that eversince, the
principles enunciated in the judgment have been consistently followed
by all judicial decisions in India, and except on one occasion, no dissent
has been expressed in respect of them. It seems somewhat ironical
that the judgment of this importance should not have been reported in
due course in Calcutta, but found a place in the Law Reports in 5 Bom
HCR 1868-69.
15. Let us then consider what this case decided. It appears that a
servant of the plaintiff Coy was proceeding on a highway in Calcutta
driving a carriage which was drawn by a pair of horses belonging to the
plaintiff. The accident which gave rise to the action took place on the
highway, and it was caused by the negligence of the servants of the
Government who had been employed in the Government dockyard at
Kidderpore. The said servants were carrying a piece of iron funnel, and
the manner in which they were carrying the said funnel caused an
injury to one of the horses that were drawing the plaintiffs carriage. It
is this injury caused by the negligence of the servants of the
Government employed in the Government dockyard that gave rise to
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the action. The plaintiff company claimed damages against the

Secretary of State for India for the damage caused by the said
accident. The suit was tried by the Small Cause Court Judge at
Calcutta. He found that the defendant's servants were wrongdoers
inasmuch as they carried the iron funnel in the centre of the road.
According to the learned Judge, the servants were thus liable for the
injury caused by their negligence. He was, however, not clear on the
question of law as to whether the defendant Secretary of State could be
held liable for the tortious act of the government servants which led to
the accident. That is why he referred the said question to the Supreme
Court of Calcutta, and the Supreme Court held that the Secretary of
State in Council of India would be liable for the damages occasioned by
the negligence of servants in the service of Government if the
negligence is such as would render an ordinary employer liable.
16. This question was considered by the Supreme Court in the light
of Section 65 of the Act of 1858. “The main object of that section”
observed Peacock, C.J., “was to transfer to Her Majesty the possession
and the Government of the British territories in India, which were then
vested in the fast India Company in trust for the Crown, but it does not
appear to have been the intention of the legislature to alter the nature
or extent of liabilities with which the revenue of India should be
chargeable”. The learned Chief Justice then considered the scheme of
the other relevant provisions of the said Act and posed the question
thus : would the East India Company have been liable in the present
action, if the 21st & 22nd Vict., clause 106 had not been passed?
Dealing with this question, the learned Chief Justice observed that “the
origin and progress of the East India Company are too well-known to
require any detail for the purpose of the present case. It is sufficient to
state that after the passing of the 3rd & 4th Wm. IV, clause 85, they
not only exercised powers of the Government, but also carried on trade
as merchants”. It was then observed by the learned C.J. that in
determining the question whether the East India Company would,
under the circumstances, have been liable to an action, the general
principles applicable to Sovereigns and States, and the reasoning
deduced from the maxim of the English law that the King can do no
wrong, would have no force, because he concurred entirely in the
opinion expressed by Chief Justice Grey in the earlier case of Bank of
Bengal v. East India Company that the fact of the Company's having
been invested with powers usually called sovereign powers did not
constitute them sovereigns. That is one aspect of the matter which was
emphasised in that judgment.
17. Proceeding to deal with the question on this basis, the learned
Chief Justice remarked that if the East India Company were allowed, for
the purpose of Government, to engage in undertakings, such as the
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Bullock Train and the conveyance of goods and passengers for hire, it
was only reasonable that they should do so, subject to the same
liabilities as individuals; and in that view of the matter, the Chief
Justice expressed the opinion that for accidents like the one with which
the Court was dealing if caused by the negligence of servants employed
by Government, the East India Company would have been liable, both
before and after the 3rd & 4th Wm. IV, c. 85, and that the same
liability attaches to the Secretary of State in Council, who is liable to be
sued for the purpose of obtaining satisfaction out of the revenues of
India. “We are of opinion,” said the learned C.J. emphatically, “that this
is a liability, not only within the words, but also within the spirit, of the
3rd & 4th Wm. IV, c. 85, Section 9 and of the 21st and 22nd Vict., c.
106, Section 65, and that it would be inconsistent with common sense
and justice to hold otherwise”.
18. It then appears to have been urged before the Court in that case
that the Secretary of State in Council must be considered as the State
or as a public officer employed by the State, and the question of his
liability determined on that footing. This argument was rejected on two
grounds that the relevant words of the statute did not justify it and that
“the East India Company were not sovereigns, and therefore, could not
claim all the exemption of a sovereign”. That is how the learned C.J.
took the view that the case “did not fall under the principle of the cases
with regard to the liabilities of such persons (that is to say, public
servants employed by the Sovereign); but they were a company to
whom sovereign powers were delegated, and who traded on their own
account and for their own benefit and were engaged in transactions
partly for the purposes of the Government and partly on their own
account, which, without any delegation of sovereign rights, might be
carried on by private individuals”.
19. It is in respect of this aspect of the matter that the Chief Justice
enunciated a principle which has been consistently followed in all
subsequent decisions. Said the learned C.J., “there is a great and clear
distinction between acts done in the exercise of what are usually
termed sovereign powers, and acts done in the conduct of undertakings
which might be carried on by private individuals without having such
powers delegated to them”. Having thus enunciated the basic principle,
the Chief Justice stated another proposition as flowing from it. He
observed that “where an act is done, or a contract is entered into, in
the exercise of powers usually called sovereign powers, by which we
mean powers which cannot be lawfully exercised except by sovereign,
or private individual delegated by a sovereign to exercise them, no
action will lie”. And, naturally it follows that where an act is done, or a
contract is entered into, in the exercise of powers which cannot be
called sovereign powers, action will lie. That, in brief, is the decision of
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the Supreme Court of Calcutta in the case of the Peninsular and

Oriental Steam Navigation Co.2
20. Thus, it is clear that this case recognises a material distinction
between acts committed by the servants employed by the State where
such acts are referable to the exercise of sovereign powers delegated to
public servants, and acts committed by public servants which are not
referable to the delegation of any sovereign powers. If a tortious act is
committed by a public servant and it gives rise to a claim for damages,
the question to ask is : was the tortious act committed by the public
servant in discharge of statutory functions which are referable to, and
ultimately based on, the delegation of the sovereign powers of the
State to such public servant? If the answer is in the affirmative, the
action for damages for loss caused by such tortious act will not lie. On
the other hand, if the tortious act has been committed by a public
servant in discharge of duties assigned to him not by virtue of the
delegation of any sovereign power, an action for damages would lie.
The act of the public servant committed by him during the course of his
employment is, in this category of cases, an act of a servant who might
have been employed by a private individual for the same purpose. This
distinction which is clear and precise in law, is sometimes not borne in
mind in discussing questions of the State's liability arising from tortious
acts committed by public servants. That is why the clarity and precision
with which this distinction was emphasised by Chief Justice Peacock as
early as 1861 has been recognised as a classic statement on this
subject.
21. We have already indicated that this distinction has been
uniformly followed by judicial decisions in India. In that connection, we
will refer to a few representative decisions. In the Secretary of State for
India in Council v. Moment3 the Privy Council had occasion to consider
the effect of the provisions of Section 41(b) of Act 4 of 1898 (Burma),
which is similar to the provisions of Section 65 of the Government of
India Act, 1858. While holding that a suit for damages for wrongful
interference with the plaintiff's property in land would have lain against
the East India Company, the Privy Council has expressely approved of
the principles enunciated by Chief Justice slice Peacock in the case of
Peninsular and Oriental Steam Navigation Co.2
22. In Shivabhajan Durgaprasad v. Secretary of State for India4 this
point arose for the decision of the Bombay High Court. In that case, a
suit had been instituted against the Secretary of State in Council to
recover damages on account of the negligence of a Chief Constable with
respect to goods seized; and the plaintiff's claim was resisted by the
Secretary of State in Council on the ground that no action lay. The High
Court upheld the plea raised by the defence on the ground that the
Chief Constable seized the goods not in obedience to an order of the
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executive Government, but in performance of a statutory power vested

in him by the Legislature. The principle on which this decision was
based was stated to be that where the duty to be performed is imposed
by law and not by the will of the party employing the agent, the
employer is not liable for the wrong done by the agent in such
employment. In discussing this point, Jenkins, C.J. referred to the
decision in the case of Peninsular and Oriental Steam Navigation Co.2
and observed that though he entertained some doubt about its
correctness, the said view had stood so long unchallenged that he
thought it necessary to accept it as an authority binding on the Court.
It is on this solitary occasion that a whisper of dissent was raised by
Chief Justice Jenkins, but ultimately, the learned C.J. submitted to the
authority of the said decision.
23. In the Secretary of State for India in Council v. A. Cockcraft5 a
claim for damages against the Secretary of State arose in respect of
injuries sustained by the plaintiff in a carriage accident which was
alleged to have been due to the negligent stacking of gravel on a road
which was stated in the plaint to be a military road maintained by the
Public Works Department of the Government. The Madras High Court
held that the plaintiff had in law no cause of action against the
Secretary of State for India in Council in respect of acts done by the
East India Company in the exercise of its sovereign powers. This
conclusion was based on the finding that the provision and
maintenance of roads, especially a military road, is one of the functions
of Government carried on in the exercise of its sovereign powers and is
not an undertaking which might have been carried on by private
persons.
24. In the Secretary of State for India in Council v. Shreegobinda
Chaudhari6 it was held by the Calcutta High Court that a suit for
damages does not lie against the Secretary of State for India in Council
for misfeasance, wrongs, negligence or omissions of duties of managers
appointed by the Court of Wards, because the acts giving rise to the
claim were done by officers of Government in the course of exercise of
powers which cannot be lawfully exercised save by the sovereign
power. It is in this connection that Rankin, C.J., enunciated the
principle that no action in tort lies against the Secretary of State for
India in Council upon the “respondent superior”. The learned C.J.,
however, recognised that a suit may lie against the Secretary of State
for India in Council for torts committed by the Government in
connection with a private undertaking or an undertaking not in exercise
of sovereign power. The same view has been taken by the Allahabad
High Court in Mohammad Murad Ibrahim Khan v. Government of United
V. Provinces7 .
25. In Uma Prasad v. Secretary of State8 certain property which had
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been stolen from the plaintiff was recovered by the police and was
thereafter kept in the Malkhana under orders of the Magistrate during
the trial of the thieves. It appears that the receiver, H.A., the man in
charge of the Malkhana, absconded with it. That led to a suit by the
plaintiff for the recovery of the property, or in the alternative, for its
price. The Lahore High Court held that the liability in the case having
clearly arisen under the provisions of the Criminal Procedure Code, the
defence plea that the act was an act of State could not succeed. Even
so, the Court came to the conclusion that the Secretary of State could
be held liable only under circumstances in which a private employer can
be rendered liable. The Court then examined the question as to whether
in circumstances like those which led to the claim for damages in the
case before it, a private employer could have been made liable; and
this question was answered in the negative on the ground that no
liability attached to the Secretary of State on account of the criminal
act of the man in charge of the Malkhana; the said act was a felonious
act unauthorised by his employer. We would like to add that some of
the reasons given by the High Court in support of its conclusion may be
open to doubt, but, in substance, the decision can be justified on the
basis that the act which gave rise “to the claim for damages had been
done by” a public servant who was authorised by a statute to exercise
his powers, and the discharge of the said function can be referred to
the delegation of the sovereign power of the State, and as such the
criminal act which gave rise to the action, could not validly sustain a
claim for damages against the State. It will thus be clear that the basic
principle enunciated by Peacock, C.J. in 1861 has been consistently
followed by judicial decisions in dealing with the question about the
State's liability in respect of negligent or tortious acts committed by
public servants employed by the State.
26. Reverting then to the decision of this Court in the case of State
of Rajasthan1 it would be recalled that the negligent act which gave rise
to the claim for damages against the State of Rajasthan in that case,
was committed by the employee of the State of Rajasthan while he was
driving the jeep car from the repair shop to the Collector's residence,
and the question which arose for decision was : did the negligent act
committed by the Government employee during the journey of the jeep
car from the workshop to the Collector's residence for the Collector's
use give rise to a valid claim for damages against the State of
Rajasthan or not? With respect, we may point out that this aspect of
the matter has not been clearly or emphatically brought out in
discussing the point of law which was decided by this Court in that
case. But when we consider the principal facts on which the claim for
damages was based, it is obvious that when the Government employee
was driving the jeep car from the workshop to the Collector's residence
-----------------------------------------------------------------------------------------------------------------------------------------------------------
for the Collector's use, he was employed on a task or an undertaking

which cannot be said to be referable to, or ultimately based on, the
delegation of sovereign or governmental powers of the State. In dealing
with such cases, it must be borne in mind that when the State pleads
immunity against claims for damages resulting from injury caused by
negligent acts of its servants, the area of employment referable to
sovereign powers must be strictly determined. Before such a plea is
upheld, the Court must always find that the impugned act was
committed in the course of an undertaking or employment which is
referable to the exercise of sovereign power, or to the exercise of
delegated sovereign power; and in the case of the State of Rajasthan1 ,
this Court took the view that the negligent act in driving the jeep car
from the workshop to the Collector's bungalow for the Collector's use
could not claim such a status. In fact, the employment of a driver to
drive the jeep car for the use of a Civil servant is itself an activity which
is not connected in any manner with the sovereign power of the State
at all. That is the basis on which the decision must be deemed to have
been founded; aid it is this basis which is absent in the case before us.
27. It is not difficult to realize the significance and importance of
making such a distinction particularly at the present time when, in
pursuit of their welfare ideal; the Government of the States as well as
the Government of India naturally and legitimately enter into many
commercial and other undertakings and activities which have no
relation with the traditional concept of governmental activities in which
the exercise of sovereign power is involved. It is necessary to limit the
area of these affairs of the State in relation to the exercise of sovereign
power, so that if acts are committed by government employees in
relation to other activities which may be con-veniently described as non
-governmental or non-sovereign, citizens who have a cause of action for
damages should not be precluded from making their claim against the
State. That is the basis on which the area of the State immunity
against such claims must be limited; and this is exactly what has been
done by this Court in its decision in the case of State of Rajasthan1 .
28. In the present case, the act of negligence was committed by the
police officers while dealing with the property of Ralia Ram which they
had seized in exercise of their statutory powers. Now, the power to
arrest a person, to search him, and to seize property found with him,
are powers conferred on the specified officers by statute and in the last
analysis, they are powers which can be properly characterised as
sovereign powers; and so, there is no difficulty in holding that the act
which gave rise to the present claim for damages has been committed
by the employee of the respondent during the course of its
employment; but the employment in question being of the category
which can claim the special characteristic of sovereign power, the claim
-----------------------------------------------------------------------------------------------------------------------------------------------------------
cannot be sustained; and so, we inevitably hark back to what Chief

Justice Peacock decided in 1861 and hold that the present claim is not
sustainable.
29. Before we part with this appeal, however, we ought to add that
it is time that the legislatures in India seriously consider whether they
should not pass legislative enactments to regulate and control their
claim from immunity in cases like this on the same lines as has been
done in England by the Crown Proceedings Act, 1947. It will be recalled
that this doctrine of immunity is based on the common law principle
that the King commits no wrong and that he cannot be guilty of
personal negligence or misconduct, and as such cannot be responsible
for the negligence of misconduct of his servants. Another aspect of this
doctrine was that it was an attribute of sovereignty that a State cannot
be sued in its own courts without its consent. This legal position has
been substantially altered by the Crown Proceedings Act, 1947 (10 &
11 Geo. 6 c. 44). As Halsbury points out, “claims against the Crown
which might before 1st January, 1948 have been enforced, subject to
the grant of the royal fiat, by petition of right may be enforced as of
right and without a fiat by legal proceedings taken against the Crown9 ”.
That is the effect of Section 1 of the said Act. Section 2 provides for the
liability of the Crown in tort in six classes of cases covered by its
clauses (1) to (6). Clause (3), for instance, provides that where any
functions are conferred or imposed upon an officer of the Crown as such
either by any rule of the common law or by statute, and that officer
commits a tort while performing or purporting to perform those
functions, the liabilities of the Crown in respect of the tort shall be such
as they would have been if those functions had been conferred or
imposed solely by virtue of instructions lawfully given by the Crown.
Section 11 provides for saving in respect of acts done under prerogative
and statutory powers. It is unnecessary to refer to the other provisions
of this Act. Our only point in mentioning this Act is to indicate that the
doctrine of immunity which has been borrowed in India in dealing with
the question of the immunity of the State in regard to claims made
against it for tortious acts committed by its servants, was really based
on the common law principle which prevailed in England; and that
principle has now been substantially modified by the Crown
Proceedings Act. In dealing with the present appeal, we have ourselves
been disturbed by the thought that a citizen whose property was seized
by process of law, has to be told when he seeks a remedy in a Court of
law on the ground that his property has not been returned to him, that
he can make no claim against the State. That, we think, is not a very
satisfactory position in law. The remedy to cure this position, however,
lies in the hands of the legislature.
30. The result is, the appeal fails, but in the circumstances of this
-----------------------------------------------------------------------------------------------------------------------------------------------------------
case, we direct that the parties should bear their own costs throughout.
———
*
Appeal from the Judgment and Decree dated 18th March, 1960 of the Allahabad High Court
in first Appeal No. 67 of 1950
1
(1962) Supp 2 SCR 989
2
5 Bom HCR Appendix A. p1
3 (1912-13) 40 IA 48
4 ILR 28 Bom 314
5 ILR 39 Mas 351
6
ILR 39 Mas 351
7 (1957) I All 94
8 18 Lah 380
9 Halsbury Laws of England, 3rd ed Vol II p 8
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
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disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.
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1994 SCC OnLine Ker 109 : AIR 1994 Ker 289 : (1994) 2 AP LJ (DNC) 47 : 1995
ACJ 253 : (1994) 1 KLJ 782 : (1994) 2 KLT (SN 12) 9
BEFORE K. JOHN MATHEW AND K. NARAYANA KURUP, JJ.
Joseph alias Pappachan and others … Appellants;

Versus
Dr. George Moonjely and another … Respondents.
A.S. No. 297 of 1993
Decided on April 6, 1994
K. NARAYANA KURUP, J.:— This case reminds us of the Stone Age cave doctor
performing ‘surgery’ by making an ‘incision’ with a sharpened stone and ‘suturing’
with a stone needle — his primitive instruments — while the ‘anaesthetist’ stood by
with a large club in his hand, ready to strike the patient if he showed any sign of life.
2. These two appeals arise out of the judgment of the learned Principal Subordinate
Judge, Parur in O.S. No. 109 of 1984 D/- 10-1-1990 granting a decree of Rs. 93,000/-
with interest at the rate of 12% per annum on the above sum in favour of the plaintiffs
-appellants (being husband and minor children of deceased Mary) towards damages
under various heads for causing the death of the said Mary by negligently performing a
Post Partum Sterilization (P.P.S.) operation. A.S. No. 297 of 1993 filed by the plaintiffs
is for enhancement of compensation as claimed in the plaint and A.S. No. 54 of 1991
filed at the instance of the defendants 1 and 2 is to set aside the judgment and decree
of the trial court in O.S. No. 109 of 1984.
3. For the sake of convenience, we are treating A.S. No. 297 of 1993 as the main
appeal.
A.S. No. 297/93 — Facts:
4. On 22-11-1982 deceased Mary (24), was admitted to the Little Flower Hospital,
Angamaly for her third delivery and on 24-11-1982, she gave birth to a male child, the
fourth plaintiff. The delivery was normal and she was discharged from the hospital on
26-11-1982. On the same day she was admitted in the nearby Moonjely Medical
Centre, Angamaly run by the second defendant who is none other than the wife of the
first defendant for Post Partum Sterilisation operation. On 27-11-1982 deceased Mary
was surgically operated by the first defendant. According to the first plaintiff, the
operation was done in a most brutal manner after tying the hands and legs of
deceased Mary to the frame of the stretcher — operating table. On 5-12-1982
deceased Mary was discharged from Moonjely Medical Centre only to be brought back
to the same hospital on the next day, namely, 6-12-1982 with complaints of pus and
faecal matter oozing through the surgical slit. The first defendant thereupon gave an
unsigned reference letter to the first plaintiff directing him to take deceased Mary to
Krishna Nursing Home, Cochin. Mary was admitted in Krishna Nursing Home at about
12.30 a.m. on 7-12-1982. In the morning of 7-12-1982 she was examined by Dr.
Sabhapathi, Chief Medical Officer of the Krishna Nursing Home who informed the first
plaintiff that Mary has to be kept under observation for a few days for fixing final
treatment. As the first plaintiff was very anxious, Mary was taken to nearby City
Hospital, Cochin on 7-12-1982 at about 6 p.m. and on the third day, namely, on 9-12-
1982 Dr. Joseph (since deceased) of City Hospital, Cochin assisted by P.W. 5 Dr. Mary,
operated deceased Mary when it was found that the abdominal cavity of deceased
Mary was filled with faecal matter and thick, foul smelling pus. The small intestine was
found adhered together into one mass. When cleared of all faecal matter and pus, the
doctors saw that the small intestine of deceased Mary was seen ‘cut and left
-----------------------------------------------------------------------------------------------------------------------------------------------------------
unsutured’ and faecal matter and pus were seen coming through that cut leading to
peritonitis. Dr. Joseph conducted laparotomy and end to end anastomosis and
abdomen closed with drain and tension sutures. A few days after the operation on 9-
12-1982 in the City Hospital, faecal discharge started again through the drain and the
condition of the patient became worse. As she required prolonged treatment, she was
removed to the Little Flower Hospital, Angamaly, nearer home, at the request of the
first plaintiff, where she was admitted on 22-12-1982. On 30-12-1982 she was again
surgically operated at Little Flower Hospital and on opening the abdomen the terminal
10″ of the ileum was found to be perforated in many places with
Page: 291
places with massive peritonitis with pockets of pus. Strangely enough this perforation
was not noticed by the City Hospital doctors’. Loops of intestine were found distended
and edematous and peritoneal cavity was found to contain faecal matter. On 3-1-1983
deceased Mary was again surgically operated at Little Flower Hospital when it was
found that one of the distended loops had burst in one place and was discharging bile-
stained fluid. Her condition progressively became worse and she breathed her last on 8
-1-1983.
5. On the above averments the plaint was laid praying for a decree of damages for
Rs. 1,75,000/- from the defendants with interest at the rate of 12% per annum from
26-11-1982 till realisation and for other reliefs.
6. First and second defendants filed a written statement controverting the
averments contained in the plaint. According to the first defendant, the small intestine
of deceased Mary was not cut during the P.P.S. operation and according to him the
fourth operation in the Little Flower Hospital, Angamaly on 3-1-1983 was necessitated
due to the failure of the previous two operations conducted in Little Flower Hospital,
Angamaly and City Hospital, Cochin. At any rate, according to the first defendant, the
P.P.S. operation has nothing to do with intestine and no injury was caused to the
intestine of the deceased Mary at the time of P.P.S. operation. The first defendant had
a further case that deceased Mary died because of perforations caused to her small
intestine due to the Typhoid fever:
7. The evidence in this case consist of the oral evidence of P.Ws. 1 to 8 and DW 1
and Exts. A1 to A15 and XI to X20.
8. The trial Court on a consideration of the evidence, found the first defendant
guilty of negligence in conducting the P.P.S. operation on the deceased and the second
defendant being the owner of the hospital vicariously liable for the negligent act of the
first defendant. The court also found that DW 1 was working there as her employee
and that the said hospital/clinic is an ill-equipped one and found that the
plaintiffs/appellants are entitled to get Rs. 93,000/- only as damages with interest at
the rate of 12% per annum.
9-10. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs
have come up with the instant appeal with a prayer to decree the suit in terms of the
plaint. In the connected appeal the defendants pray for setting aside the decree.
11. The following questions arise for consideration in these appeals, namely: (1)
whether the death of the deceased Mary was caused on account of negligence of the
first defendant in performing the P.P.S. operation; (2) If the answer to the above
question is in the affirmative, what is the nature of liability of defendants 1 and 2; and
(3) whether the damages awarded by the lower court is adequate or not?
12. In order to decide the first question, we propose to examine the evidence
-----------------------------------------------------------------------------------------------------------------------------------------------------------
adduced in this case in detail. Ext. X13 is the out patient record of the Little Flower
Hospital, Angamaly in the name of deceased Mary which shows that she was admitted
there on 22-11-1982 for delivery and was discharged on 26-11-1982 after normal
delivery. Ext. X4 is the description of medicines of Moonjely Medical Centre, where the
P.P.S. operation was done by the first defendant on deceased Mary which shows that
deceased Mary was surgically operated on 27-11-1982 under local anaesthesia (no
description of the anaesthesia used is given) after administering intravenous Fortwin
which is an analgesic — pain killer. Ext. X4 further shows that deceased Mary was
brought to Moonjely Medical Centre on 6-12-1982 with complaint of ‘foul smelling
discharge’ through the surgical slit. It further reveals that deceased Mary was referred
to Krishna Nursing Home at about 10.30 p.m. on 6-12-1982. Ext. X5 is the certificate
of admission issued by Krishna Nursing Home, Cochin in favour of deceased Mary
which shows that deceased Mary was admitted in that hospital at 12.45 a.m. on 7-12-
1982 with faecal matter discharging through Sub-Umbilical opening. Ext. X7 is the
Laparotomy findings issued by City Hospital, Cochin which shows that faecal matter
was pouring out through the gaped surgical
Page: 292
incision of about 3 c.m. long below the umbilicus. Ext. X7 made the further shocking
revelation that the abdominal cavity was filled with faecal matter and thick foul
smelling pus and that the terminal ileum about 25 c.m. from the ileo-caecal junction
was completely cut transversely up to the mesentery. Ext. X16 case records of City
Hospital, Cochin relating to the deceased Mary show that the small intestine was
anastomosed end to end and abdomen closed with drain and tension sutures. Ext. X17
Post-mortem certificate issued by Dr. E.O. Raja, Assistant Professor, Department of
Forensic Medicine and office of the Police Surgeon, Medical College, Alleppey regarding
the body of Mary shows that the ‘ileum was sutured and that the middle part of the
fallopian tubes were found necrosed and fimbrial ends were intact with fallopian tubes.
According to Ext. X17 post mortem report deceased Mary dies as a result of peritonitis.
Ext. X19 Medico-legal opinion by Dr. V.K. Jayapalan, Director and Professor and Police
Surgeon and State Medico-legal Expert and Consultant shows that deceased Mary died
of peritonitis developed as a complication of the injury sustained to the intestine
during the operation of P.P.S. Ext. X14 is the dying declaration of deceased Mary,
which was recorded by the Judicial IInd Class Magistrate, Alwaye on 31-12-1982 at
5.35 p.m. It contains the further shocking revelation that she was operated without
administering anaesthesia after covering her head with a towel and tying her hands
and legs to the frame of the operating table.
13. PW 1 is the first plaintiff, husband of deceased Mary and P.W. 2 is the then
Director of City Hospital who proved Exts. X7 and X16 records of City Hospital. PW 3 is
Dr. Ayyappan Pillai, who inspected the Moonjely Medical Centre as per the request of
the Superintendent of Police, Alwaye. PW 4 was the Judicial IInd Class Magistrate,
Alwaye who recorded Ext. X14 dying declaration of deceased Mary. PW 5 is Dr. Mary
who assisted Dr. Joseph who conducted the laparotomy operation on deceased Mary in
the City Hospital, Cochin and has proved Ext. X16 case records of City Hospital.
Besides swearing in categorical terms that deceased Mary has suffered a cut injury to
the intestine which was left un-sutured. She stated that faecal matter was seen
coming through that cut and that she saw the formation of peritonitis through that
cut. PW 6 is the Deputy Superintendent of Police, Alwaye, who proved Exts. X18 and
X19. PW 7 is the sister of deceased Mary and PW 8 is Dr. Jayapalan, Director and
Professor and Police Surgeon and State Medico-Legal Expert and Consultant who gave
-----------------------------------------------------------------------------------------------------------------------------------------------------------
expert opinion.
14. On the side of the defendants, the first defendant gave evidence as DW 1.
15. On an appreciation of evidence adduced in this case, we find that deceased
Mary was hale and hearty when she was admitted in the Moonjely Medical Centre for
P.P.S. operation which was done by the second defendant on 26-11-1982. In fact she
had given birth to a healthy baby without any complication only two days back,
namely, 24-11-1982 in the Little Flower Hospital. Complication started on the very day
she was surgically operated for P.P.S. by the first defendant on 27-11-1982. Even the
very surgery was done under crude and primitive conditions. It is doubtful whether the
room in which it was done was kept under aseptic condition. The worst side of the
picture is the gruesome fact that she was operated upon by the first defendant without
administering even local anaesthesia. Ext. X4 hospital records of Moonjely Medical
Centre shows that intravenous Fortwin was administered to Mary along with local
anaesthesia (L.A.) without mentioning as to what is the local anaesthetic agent used.
Fortwin being an effective pain killer usually administered post operatively to relieve
pain, it is rather strange that it was administered along with local anaesthesia.
Therefore, we are inclined to believe that in all probability the first defendant
administered to deceased Mary Fortwin alone as a substitute for local anaesthesia
thereby causing excruciating pain to her. Deceased Mary was very categoric on this
aspect in Ext. X14 dying declaration when she states that she was operated without
Page: 293
anaesthesia. Her stay in Moonjely Medical Centre after P.P.S. operation on 27-11-1982
deceptively uneventful was not that smooth as she was feeling discomfort due to
heavy distention of abdomen, a sure sign that something had gone wrong with the
operation. But her complaints were dismissed by the first defendant as mere gas
(flatulence) and she was eventually discharged ‘fit’ on 5-12-1982 only to be brought
back to the same hospital on the next day with complaint of discharge of pus and
faecal matter through the surgical wound. Instead of referring deceased Mary to the
nearby Little Flower Hospital which is a fullfledged hospital with all modern amenities
which could have saved much precious time the first defendant for reasons best known
to him, referred her to Krishna Nursing Home, where she was admitted at 12.30 a.m.
on 7-12-1982. As already noticed Ext. X5 certificate of admission issued from the
Krishna Nursing Home in favour of deceased Mary shows that she was admitted in that
hospital with faecal matter discharging through the sub-umbilical opening. Ext. X7
laparotomy findings issued by the City Hospital, Cochin shows that faecal matter was
pouring through gaped incision of about 3 c.m. long below the umbilicus. Ext. X7 also
shows that the abdominal cavity of deceased Mary was filled with faecal matter and
thick foul smelling pus and the terminal ileum about 25 c.m. from the ileocaecal
junction was completely cut transversely up to the messentery. Ext. X16 case records
of City Hospital shows that small intestine was anastomosed end to end and abdomen
closed with drain and tension sutures. Necessity for anastomosis, arises only when the
small intestine has suffered a cut in which case the portion of the intestine which has
suffered a cut which is left unsutured resulting in irreparable damage has to be
resected and the remaining loose ends of the small intestine has to be joined together
by anastomosis. In this connection it is worthwhile to refer to the evidence of PW 5
who is none other than Dr. Mary, who assisted Dr. Joseph (since deceased) while
performing the laparotomy on deceased Mary. According to PW 5, page 6 of Exhibit
X16 is in her handwriting and that small intestine of deceased Mary was cut up to
mesentery about 10″ from the ceacum, i.e., 10″ away from ceacum. Exhibit X5
certificate of admission issued by Krishna Nursing Home, Cochin shows that faecal
-----------------------------------------------------------------------------------------------------------------------------------------------------------
matter was oozing through the sub-umbilical opening. Exhibit X7 laparotomy finding
issued by City Hospital, Cochin shows that faecal matter was pouring out through the
gaped incision of about 3 c.m. long below the umbilicus. Exhibit X7 made the further
shocking revelation that the abdominal cavity was filled with faecal matter and thick
foul smelling pus and that the terminal ileum about 25 c.m. from the ileo-caecal
junction was completely cut transversely up to the mesentery. Exhibit X17
postmortem certificate dated 11-1-1983 shows that the ileum was found sutured and
the peritonial cavity was soiled with faecal matter. Exhibit X17 post-mortem certificate
throws considerable light on the negligence with which first defendant performed the
P.P.S. operation on deceased Mary. It shows that the ileum was found sutured. This
suturing of ileum has obvious reference to the 2nd operation done at City Hospital,
where laparotomy was conducted and cut sutured with drain and tension wire. The
suturing of ileum was necessitated because it was already cut (but left unsutured) at
the P.P.S. operation performed on deceased Mary by the first defendant on 27-11-
1982. The fact that ileum was mistakenly cut is evident from the further finding in
Exhibit X17 post mortem certificate to the effect that the middle part of the fallopian
tubes were found only necrosed. In Exhibit X17 post mortem certificate, there is no
finding that the fallopian tubes were cut, which means that the first defendant was
negligent in conducting the P.P.S. operation and that he cut the small intestine
instead of cutting off the knuckle of the fallopian tube which is the standard P.P.S.
procedure. According to PW 8, Dr. V.K. Jayapalan, Director of Professor and Police
Surgeon and State Medico Legal Expert and Consultant, deceased Mary died of
peritonitis developed as a complication of the injury sustained to the intestine during
P.P.S. operation. According to him if a patient undergoing surgical operation happens
to sustain a cut
Page: 294
injury to the intestine and leaving the injury as such unsutured for a period of 7 to 10
days, there is every likelihood of that patient reaching a very critical and fatal stage or
condition. He further swears that he did not find any other reason to account for
peritonitis. From these facts it is clear that Mary died due to peritonitis as a sequel to
the cut in her small intestine which she suffered as a result of the negligent P.P.S.
operation performed on her by the first defendant. The contention of the first
defendant that the small intestine was not cut during the P.P.S. operation can be
accepted only with a pinch of salt in the light of the clinching evidence that has been
brought out in this case. Why we are holding so is because of the fact that Mary first
complained of discharge of pus and faecal matter through the surgical incision on 6-12
-1982, viz., on the 10th day after the P.P.S. operation. The first defendant has no case
that she had undergone any other surgical operation in the interregnum between 27-
11-1982 and 6-12-1982. So the only possible and plausible reason for the abnormal
discharge is the cut to the intestine which she suffered while undergoing the P.P.S.
operation at the hands of the first defendant.
16. The other contention of defendants 1 and 2 is that Mary died because of
perforations caused to her small intestine due to typhoid fever and not because of any
cut to the intestine. On examining this contention in the light of the evidence brought
out in this case, we find no merit in the said contention. The defendants rely on the
findings contained in Exhibit X6 operation records of Little Flower Hospital, Angamaly
to the effect that in the distal portion of the ileum there are number of perforations
extending from about 2″ proximal to ileo-caecal junction 10″. Reliance is also placed
on Exhibit XII histopathological report of Kasthurba Medical College, Manipal appended
-----------------------------------------------------------------------------------------------------------------------------------------------------------
to the death certificate issued by Little Flower Hospital, Angamaly in which it is stated
that lymphicytes plasma cells and few histocytes morphology is suggestive of
perforation due to typhoid fever’. On an anxious consideration of the various related
aspects of this argument we are afraid we cannot accept this contention. First of all, it
has to be noted that it is an accepted medical proposition that perforation due to
typhoid usually occurs during 2nd to 3rd week after the onset of symptoms typical of
typhoid. In this connection it has to be noted that Mary never presented any symptom
of typhoid. That apart, it is worthwhile to note that even though Exhibit X6 mentions
about perforations, such perforations were not seen mentioned either in Exhibit X7
laparotomy findings issued by City Hospital, Cochin or in Exhibit X18 and X19 medico-
legal opinion or in Exhibit X17 post-mortem certificate. As already noticed, Exhibit X17
post mortem certificate mentions only about the cut to the intestine (when it states
that the ileum was found sutured) and not about any typhoid ulcer perforation.
Moreover, if it was a case of typoid ulcer perforation, deceased Mary would have
presented an entirely different clinical picture. Deceased Mary never presented any
such symptom. All that she had was faecal matter and thick foul smelling pus oozing
through the cut in the small intestine. To cap it all neither the surgeon of the Little
Flower Hospital, who made the findings regarding typhoid ulcer perforation nor the
Pathologist of Kasthurba Hospital who issued the histopathology report which forms
part of the death certificate has been examined in this case. In the light of the above
discussion, the conclusion is irresistible that Mary died on account of negligence of the
first defendant in performing the P.P.S. operation and not on account of perforation
due to typhoid fever.
17. Having found the answer to the first question in the affirmative, the second
question is the nature of liability of defendants 1 and 2. The first defendant as D.W. 1
has admitted that the second defendant who is his wife is the owner of Moonjely
Medical Centre where deceased Mary had undergone P.P.S. operation. He further
swears that he conducted the P.P.S. operation as an employee and doctor of that
hospital. In the light of our finding that the first defendant was negligent in
performing the P.P.S. operation, he is primarily liable for his negligent act and the
Page: 295
second defendant as the owner of the hospital is vicariously liable for the negligent act
of the first defendant. Regarding the vicarious liability of those who run the hospital
for the negligent acts of the doctors employed by them, the question is no longer
resintegra. Persons who run a hospital are in law under the self-same duty as the
humblest doctor; whenever they accept a patient for treatment, they must use
reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of
course, do it by themselves; they have no ears to listen through the stethoscope, and
no hands to hold the surgeon's scalpel. They must do it by the staff which they
employ; and if their staff are negligent in giving the treatment, they are just as liable
for that negligence as in anyone else who employs others to do his duties for him.
(See in this connection Gold v. Essex County Council (1942) 2 All ER 237.) Therefore,
we find that the first defendant is primarily liable for his negligent act and second
defendant being the owner of the hospital is vicariously liable for the negligent
conduct of the first defendant.
18. The principle of awarding damages which apply in medical cases are no
different from those which are applicable in other cases involving personal injury. The
first point to be noticed is that the person who commits the tortious act is necessarily
liable in damages for all the direct consequences that flow from the wrongful act albeit
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he may not be liable for those acts which are too remote. The doctor has a legal duty
to take all reasonable care and the breach of that legal duty to take care resulting in
damages to the plaintiffs gives rise to cause of action to the person injured. The
question is what is the degree of skill and care expected of a doctor? He must bring to
his task a reasonable degree of skill and knowledge, and must exercise a reasonable
degree of care. ‘Neither the highest, nor a very low degree of care and competence’
judged in the light of the particular circumstances of each case, is what law requires.
18A. Viewed in the above perspective it can be seen that Mary's death was caused
as a direct consequence of negligence on the part of the first defendant in performing
the P.P.S. operation and the first defendant failed to exercise reasonable degree of
care and skill in performing the said operation. In fact, he was reckless in cutting the
small intestine of deceased Mary instead of the fallopian tube and leaving it unsutured
giving rise to peritonitis which is the direct cause of Mary's death.
19. With regard to the quantum of damages awarded by the trial court, we are of
the view that the same is not adequate to meet the ends of justice.
20. An amount of Rs. 30,000/- has been awarded for medical expenses incurred by
the first plaintiff and supported by medical bills. Since that is the actual expenditure
incurred by the first plaintiff, no enhancement is called for and we confirm the same.
For pain and suffering a sum of Rs. 30,000/- as claimed is decreed and we limit the
claim to the amount claimed and decreed even though considering the excruciating
pain suffered by the deceased we are of the view that the plaintiffs were entitled to
claim a higher amount under this head.
21. Under the head of loss of consortium and pecuniary loss the amounts of Rs.
15,000/- and Rs. 18,000/- respectively awarded by the trial court appears to us to be
niggardly. For a grave and substantial injury of the nature suffered by the plaintiffs, no
amount of money would be a “perfect compensation” which can restore to them what
has been lost by them for ever. Deceased Mary was only 24 years of age at the time of
her death. She was survived by her husband the first plaintiff and three young
children, plaintiffs 2 to 4. She was a housewife looking after the entire household. She
was also deriving income out of her poultry business. The infant baby had to be
properly looked after and for that purpose, and also for looking after the household
work the first plaintiff has to engage some responsible person. The first plaintiff
himself has lost his life partner depriving him of his thrill and joy of life and the
children lost their mother's love and care. Considering all these facts, we are of the
view that the plaintiffs are entitled to “substantial damages” to the tune of Rs. One
Page: 296
lakh under the head of loss of consortium, pecuniary loss, loss of amenities of life and
shortened expectation of life. We are very much conscious of the fact that the
“niggardly” amount decreed by the courts have deterred many a victim of medical
negligence from pursuing the legal remedy.
22. In the result, A.S. No. 297 of 1993 is allowed in part and the plaintiffs are given
a decree for a sum of Rs. 1,60,000/- together with interest at the rate of 12% per
annum on the above sum from the date of suit till realisation and proportionate cost
from defendants 1 and 2 and from their assets. Defendants 1 and 2 are ordered to pay
appellants cost in this appeal inclusive of court-fee on the Memorandum of Appeal.
Forward a copy of this judgment to the District Collector, Ernakulam to recover the
amount of court-fee from defendants 1 and 2.
A.S. No. 54 of 1991.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
In the light of our finding that defendants 1 and 2 are liable for damages to the
plaintiffs for negligently causing death of Mary and in view of the fact that we have
allowed A.S. No. 297 of 1993 and enhanced the quantum of damages from Rs.
93,000/- to Rs. 1,60,000/- this appeal must fail. Appeal dismissed. No costs.
Appeal dismissed.
———
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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2014 SCC OnLine Kar 12215 : (2014) 3 KCCR 1839 : (2014) 2 AIR Kant R 785 :
(2014) 3 Kant LJ 545 : AIR 2015 (NOC 94) 43
In the High Court of Karnataka

(BEFORE ANAND BYRAREDDY, J.)
Dr. Rameharan Thiagarajan, FACS … Petitioner;

Versus
Medical Council of India, New Delhi and Others … Respondents.
Writ Petition No. 11207 of 2013 (GM-RES)
Decided on April 3, 2014
Page: 1841
ORDER
ANAND BYRAREDDY, J.:— The facts of the case are as follows:
2. The petitioner is a Medical Practitioner and is a Consultant in Surgical
Gastroenterology and Laparoscopic Surgery. He is also said to be a Multi-organ
Transplant Surgeon and was working as a consultant with M/s. Fortis Hospital,
Bangalore.
3. The petitioner is said to be conferred with innumerable honours both in India and
abroad, over the years in recognition of his expertise and advanced knowledge in the
field of organ transplantation. During the year 2010, Smt. Seema Rai, the wife of the
third respondent, was said to have been diagnosed with severe diabetes and end-
stage renal failure, was undergoing dialysis treatment at M/s. Fortis Hospital. She was
also said to have been registered with the Zonal Co-ordination Committee of
Karnataka (Hereinafter referred to as the “ZCCK”, for brevity) for cadaver kidney
transplantation. ZCCK is a body co-ordinating and regulating the harvesting of cadaver
organs in the State of Karnataka. It is stated that this body ensures that whenever a
cadaver organ becomes available, atleast five expectant recipient patients, on a
waiting list, are intimated so as to ensure that atleast one recipient can be identified
with a blood group cross match and other compatibility criteria, so that the cadaver
organ is successfully grafted and to ensure that the organ is not lost or wasted.
4. It is said that M/s. Fortis Hospital had received a call from ZCCK on 1.5.2010,
intimating them of the availability of a kidney for transplantation with reference to
Smt. Rai; The hospital is said to have, in turn, intimated
Page: 1842
her and her family and she was immediately admitted to the Emergency Transplant
surgery on the night of 1.5.2010. It transpires that she had waited for a year to be the
recipient of the available organ. It is claimed that Smt. Rai and her family had been
adequately Counselled during this waiting period of the procedures and protocols
involved.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
5. It is claimed that ZCCK had intimated that pancreas was also available from the
same cadaver donor and that there was no other prospective recipient registered for
the same at that point of time with ZCCK. It is stated that on account of Smt. Rai
being a severe diabetic, she was to benefit by a pancreatic transplant as well and
hence it is claimed that she and her family were informed. It is said that after due
deliberation, consent was given for the dual transplantation of kidney and pancreas.
6. It is stated that on the early morning of 2.5.2010. kidney transplant surgery was
successfully carried out on Smt. Rai. It is thereafter that the pancreas transplantation
had been carried out. It transpires that the patient developed a rare, but serious
complication called — disseminated intravascular coagulation (abnormal bleeding).
Over the next three days, it is stated, the patient required multiple units of blood,
plasma, platelets etc. to control the bleeding and she did appear to recover - but on
the third day after surgery, she is said to have developed high fever and died the
following day on account of sepsis.
7. It is stated that the third respondent who, it is claimed, had not raised any
complaint or grievance during the treatment and surgery, is said to have lodged a
complaint before the J.P. Nagar Police Station, as on 2.6.2010, accusing the petitioner
and a Nepbrologist. who had treated the deceased for her renal failure, of acts of
negligence. This is said to have been followed by a complaint against them before the
Karnataka Medical Council (Hereinafter referred to as the K.MC. for brevity). On the
basis of the criminal complaint, the police are said to have registered a case for
offences punishable under the provisions of the Penal Code, 1860. It is claimed that
the investigation in the criminal case was incomplete as on the date of this petition.
8. The KMC had held an enquiry against the petitioner and another in respect of the
complaint and after a full Hedged enquiry, had held that there was no case made out
indicating negligence or violation of the Code of Medical Ethics — on the part of the
petitioner or others and exonerated them by an order dated 2.6.2011.
9. The third respondent is said to have filed a complaint before the Karnataka State
Consumer Disputes Redressal Commission (KSCDRC)
Page: 1843
complaining of medical negligence and has claimed damages quantified at Rs. 81.56
lakh.
10. The third respondent is also said to have lodged a complaint with the
Department of Health and Family Welfare Services, seeking action against the hospital
and the doctors concerned. It is stated that, one Dr. V. Raju, Joint Director (Medical).
Department of Health and Family Welfare, was nominated to conduct an enquiry. On a
preliminary enquiry, the said Dr. Raju. is said to have given a finding that the
treatment given to the patient was appropriate and that no fault could be found with
the hospital, the doctors or its staff. The third respondent is said to have questioned
the said finding before the Appropriate Authority, alleging that there was an unfair
bias in having arrived at the finding and that the enquiry was not properly conducted.
The Appropriate Authority is said to have ordered a further enquiry under the
provisions of the Transplantation of Human Organs and Tissues Act, 1994 (Hereinafter
referred to as the “HOTA”, for brevity). The said Authority, after conducting a detailed
enquiry, gave its finding to the effect that the primary allegation as to M/s. Fortis
Hospital not being authorized to conduct multi-organ transplantations, was not tenable
and gave the hospital a clean chit, by its order dated 22.12.2010.
11. It transpires that the third respondent approached the Lokayuktha with a
-----------------------------------------------------------------------------------------------------------------------------------------------------------
complaint against the Chairman of the aforesaid Appropriate Authority. The

Lokayuktha in turn, is said to have called for a report of a Technical Committee,
consisting of three doctors, who were to examine the opinion of the Appropriate
Authority. The said Committee, it appears, had furnished a report disagreeing with the
opinion of the Appropriate Authority. On the basis of the same, the third respondent
having approached the Appropriate Authority over again, the said Authority had issued
a show-cause notice to the hospital and ultimately reversed its earlier opinion and held
that M/s. Fortis hospital was not authorized to conduct transplantation of pancreas and
recommended for cancellation of the license granted to the hospital for transplantation
of human organs and cancelled the certificate of registration, by its Order dated
12.9.2011. But even in the said review, the Appropriate Authority had held that there
was a valid consent by the patient and her family and that there was no negligence on
the part of the petitioner.
12. The Lokayuktha had, however, by an order dated 9.9.2011 held that it had no
authority to enquire into the decision of the Appropriate Authority.
13. The third respondent had also questioned the earlier Order dated 22.10.2010
passed by the Appropriate Authority before this Court by way
Page: 1844
of a writ petition in WP 6523/2011 and the same was disposed of by an order dated
8.9.2011. directing the Appropriate Authority to dispose of the second complaint
expeditiously.
14. The Hospital is said to have challenged the Order dated 12.9.2011 passed by
the Appropriate Authority by way of an appeal before an Appellate Authority, namely,
the Secretary. Department of Health and Family Welfare, Government of Karnataka.
The said appeal is said to have been dismissed by an order dated 24.11.2011. The
same is said to have been challenged before this Court by way of a writ petition in WP
45437/2011, the same was allowed and the matter was remitted back to the
Appropriate Authority for a fresh consideration, while restraining the Hospital from
performing transplantation surgeries during the pendency of the matter. That portion
of the order restraining the Hospital from carrying on any transplantation surgeries
was said to have been stayed in an appeal preferred before a Division Bench of this
Court in WA 8707/2012.
15. The third respondent is said to have challenged the order dated 2.6.2011
passed by the KMC — exonerating the petitioner of any act of negligence before the
Medical Council of India (Hereinafter referred to as the MCF, for brevity). By an order
dated 27.10.2012. the said appeal is said to have been allowed and the name of the
petitioner was ordered to have been removed from the Indian Medical Register (IMR)
for a period of one year, holding that the petitioner operated on Smt. Rai in a Hospital,
which did not possess a valid license issued by a competent authority for conducting
surgery for pancreas transplantation and that he had failed to obtain informed consent
for the entire process of kidney and pancreas transplantation. The said order is said to
have been approved by the Board of Governors on 10.12-2012 and the same having
been communicated to the petitioner by a letter dated 19.2.2013, the same is under
challenge in this petition.
16. The learned Senior Advocate Shri C.V. Nagesh, appearing on behalf of the
Counsel for the petitioner contends as follows:
The impugned Order which seeks to reverse the finding that M/s. Fortis Hospital
was duly licensed to conduct kidney and pancreas transplantation is a bald and
-----------------------------------------------------------------------------------------------------------------------------------------------------------
cryptic order — which does not discuss the voluminous material evidence in support
of the finding and is hence liable to be set aside on that ground alone.
17. Elaborating further, it is pointed out that the Hospital had made three separate
applications dated 18.1.2010 to the Director, Health and Family
Page: 1845
Welfare Services. Government of Karnataka, seeking Certificates of Registration to

conduct transplantation under the following categories, which are as specified under
the Transplantation of Human Organs Rules, 1995 (Hereinafter referred to as the ‘THO’
Rules, for brevity) namely:
(i) Kidney transplantation:

(ii) Transplantation of liver and other abdominal organs:
(iii) Cardiac, pulmonary, cardio-pulmonary transplantation.
18. Pursuant to the filing of such applications, it is said that a Committee
constituted by the Appropriate Authority, had inspected the Hospital and verified that
it has the facilities and the required Specialists for the said purpose and on being
satisfied, the Appropriate Authority is said to have issued a Certificate of Registration
dated 25.3.2010. The said Certificate was in respect of the following:
(i) Kidney
(ii) Liver
(iii) Homograft (permitted usage only).
19. It is contended that under HOTA. separate registration for pancreas, intestines
or other abdominal organs is neither granted nor is necessary, since all these are
grouped under the same category, namely, “liver and other abdominal organs.” It is
also pointed out that there is no reference to pancreas anywhere in the HOTA or the
Rules thereto. Attention is drawn to the opinion expressed by the then Joint Director,
(Medical). Dr. H.C. Ramesh, when the very point was raised before the Appellate
Authority, to the effect that it is not the practice in issuing certification to name all the
organs as for instance in the category “Liver”. it is not necessary to mention all other
abdominal organs. Pancreas is one of the abdominal organs.
20. It is contended that this opinion is also endorsed by Dr. V. Raju. Joint Director
(Medical), who had testified before the KMC, to state:“Fortis Hospital has a license to
perform pancreas transplantation as they already have permission to perform liver
transplantation which includes pancreas and other abdominal organs”.
21. It is hence contended that in the absence of any discussion in the impugned
order, the basis for any conclusion drawn is not known and hence leads to a
miscarriage of justice.
Page: 1846
22. It is further contended that the KMC had considered the entire material placed
before it in depth and an unanimous opinion was formed by the Council that there was
no negligence or violation of the Code of Medical ethics, on the part of the doctors,
who performed the transplant surgery on Smt. Rai. The contention of the third
respondent that there was no informed consent either of the patient, or the attendant
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of the patient, had been negatived by the Appropriate Authority as well as the
Appellate Authority. Tins is completely overlooked by the first respondent in passing
the impugned order.
23. It is contended that consent of a patient undergoing organ transplantation is
not the mere signature on a form, but is a long process of the patient being made to
understand the implication of the surgery, and preparing the patient and her family
mentally and the actual procedure is carried out only on being absolutely certain about
the patient's physical state, before planning on the surgery. This was fully complied
with by the team of doctors who attended on the patient in the present case, to the
knowledge of the third respondent. The document itself, evidencing such consent is a
necessary formality. In any event, the same had been accepted by more than one
authority. However, the first respondent has negated the same even in the absence of
any contra material or circumstances.
24. On the other hand, the third respondent, Major Pankaj Rai (retired), appearing
in person would contend as follows:
The petitioner has an alternative remedy of an appeal under Section 24 of the
Indian Medical Council Act, 1956 (Hereinafter referred to as the ‘IMC Act’, for
brevity), as against the impugned order and hence the petition would have to be
rejected oh that ground alone.
25. It is contended that the petitioner Was well aware of the limitations of the
transplantation license granted to M/s. Fortis Hospital and in particular, the fact that
the Hospital did not have the license to carry out transplantation of organs except
those specifically stated in the license. The petitioner was also aware of Rule 4A of the
THO Rules that prohibited him from carrying out transplantation surgery since he was
also the Medical Coordinator of ZCCK. Despite being so aware, the petitioner willfully
had violated the HOTA and the THO Rules. Consequently, the impugned order insofar
as it relates to the petitioner is appropriate.
26. It is contended that the petitioner and its personnel, including the doctors
concerned, had failed to comply with the license conditions relating to appropriate
disclosures mandated against the petitioner and also the mandates in relation to
requisite awareness and psychological evaluation,
Page: 1847
to procure an “informed consent”. In effect, the petitioner has failed to comply with
Section 12 of the HOTA, which is a mandatory provision. Relevant depositions of the
personnel of the petitioner — Hospital amply evidence the above position. Further,
even ZCCK, in response to a query under the Right to Information Act, 2005, has
expressed that it was unaware of the petitioner — Hospital not having a license for
transplantation of Pancreas. It is thus clear that M/s. Fortis Hospital had failed to
discharge its fiduciary duties., towards Smt. Rai and her family and violated the trust
reposed in the petitioner — Hospital by her and her family.
27. It is contended that in so far as the claim that the applications for Certificate of
Registration to conduct transplantation of all abdominal organs was granted, is
misleading and incorrect. It is contended that in fact, only the covering letters,
accompanying the applications, contained the above description and not the
applications themselves. The applications are organ specific and so are licenses and
registrations granted to a transplant centre. Therefore, M/s. Fortis Hospital had made
applications under Form No. 11 specifically and only for transplantation of Kidney,
Liver. Heart with Homograft. M/s. Fortis Hospital had also included the organ —
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Pancreas in its application for the organ—Liver. Since separate applications are
required to be made for each organ, the application of M/s. Fortis Hospital was
defective to the extent of containing Pancreas as an additional organ in the application
for Liver. Consequently, the license for Pancreas was not granted to Ws Fortis Hospital.
The petitioner was well aware that the Hospital did not pay the prescribed fee for the
organ Pancreas nor had made a separate application as required in law. Consequently,
the inspection committee did not recommend Pancreas, as part of license, for
transplantation. The Hospital did not file an appeal within thirty days and allowed the
matter of registration for Kidney, Liver and Homograft to reach finality.
28. It is further contended that a license granted under the HOTA is organ specific
and separate licenses are granted for specified organs under the HOTA. The
Government of Karnataka has issued specified licenses for transplantation of Pancreas
to M/s. Narayana Hrudayalaya. M/s. Columbia Asia Hospital and M/s. BGS Global
Hospital. The Government of Tamil Nadu has also issued a Certificate granting license
for Pancreas to M/s. Global Hospital, Chennai. Similarly, in Delhi, M/s. Apollo Hospital
and All India Institute of Medical Sciences (AIIMS) have been granted separate
licenses for Pancreas. The term “human organ” is defined clearly in Section 2(h) of the
HOTA and the HOTA does not make any specific
Page: 1848
mention to any of the organs in a human body. The petitioner has been granted
permission for Homograft'. however, even Homograft' does not appear in the HOTA,
nor for that matter, the lower bowel. The Director General of Health Services.
Government of India, by its letter dated 31.5.2011 has clarified that the license for
Liver does not include Pancreas' and violation of this is punishable with both
imprisonment and fine. The Public Information Officer of the Appropriate Authority for
Organ Transplantation. Government of Karnataka, also clarified explicitly, by a letter of
August 2011, that license for transplantation of Liver does not provide blanket
permission for transplantation of other abdominal organs (Pancreas/Lower bowel) as
well. Further, even the THO Rules in general and Rule 9(C) in particular, that is being
referred to by the petitioner, are merely indicative and not exhaustive or suggestive of
being exhaustive. It refers to experts and their qualifications' and not to the
registration of Hospitals under the HOTA. The said position has been clarified by the
Director General of Health Services by his letter dated 15.11.2011. However, it is
contended that the petitioner is attempting to misinterpret the THO Rules to suit his
convenience. The same is baseless and without any merit.
29. It is further contended that the following circumstances would indicate that an
informed consent as mandated under the Act was never taken from the patient.
a. Smt. Seema Rai. the patient had not signed the “Informed Consent Form”. The
Act stipulates that the consent be given by the patient (recipient) only.
b. According to license condition No. 3, the patient is required to be explained and
be given a booklet in English and Kannada with detailed information about the
investigations to be done, possible complications during investigations,
transplantation and thereafter, appropriate assessment of the costs, risks and
alternatives. This was never done. The petitioner has explicitly deposed before
the KMC that he had explained the benefits and risks of combined transplant to
Mrs. Seema Rai. but had not recorded the same.
c. Dr. Rajanna Sreedhara, the Nephrologist has deposed before the KMC on
3.2.2011 and said “I have not advised regarding Pancreas transplant along with
-----------------------------------------------------------------------------------------------------------------------------------------------------------
kidney transplant”. The petitioner was introduced to the patient for the first time
at about 9.45 P.M. on 1.5.2010 for the first time. The petitioner
Page: 1849
advised the patient for simultaneous Kidney and Pancreas transplant for the very first
time.
d. A pre-requisite before taking the informed consent was evaluation by the

cardiologist. In the Cadaver Kidney Transplantation Pre-Operative Recipient
Orders, Dr. Rajanna Sreedhara had directed “References to the following for
preoperative assessment and clearance — Dr. Venkatesh Cardiologist”. However,
in his deposition before the KMC on 3.2.2011 he has deposed that, “I did not feel
that there was a need for a Cardiologist evaluating at the time of admission”. The
Hospital records of 1.5.2010 states, “Informed Dr. Venkatesh about the
admission and reference. Sir told that he will come and see the patient
tomorrow.”
e. The third respondent was advised to procure an immune suppressant drug
(Simulect) in the event of surgery. The drug is required to be administered prior
to surgery. However, the surgery was started before the complainant reached the
Hospital as is evidenced from the hospital records. Incision was made at
7.30A.M. and the drug was administered at 8.15 A.M.
f. The patient's daughter was woken up in the morning and asked to sign a form
and write her mother's name stating that the patient has to be taken for a
routine medical test. The daughter did not realise that she had been asked to
sign on the consent form and the petitioner — Hospital has taken advantage of
the same.
g. Suppression of the fact that the Hospital does not have a license for Pancreas
renders any kind of consent null and void.
30. It is contended that it is clear from the averments of the petitioner that the
petitioner had harvested Pancreas even before any consent was given by Smt. Seema
Rai for the transplantation surgery. Thus, it is evident that the petitioner and M/s.
Fortis Hospital had already planned to carry out transplantation of Pancreas even
before Smt. Seema Rai had consented to such transplantation. Thus, the violation of
Section 12 of the HOTA is clearly evident from the aforementioned actions of the
petitioner.
31. Apart from Section 12 of the HOTA, transplantation surgery without procuring
informed consent is violation of Regulation 7.16 of Code of Ethics Regulations of MCI.
Thus, the petitioner deserves to be awarded a higher punishment than what has been
awarded in the impugned order.
Page: 1850
32. In the light of the above facts and circumstances, the following points arise for
consideration:
(i) Whether the MCI possessed the jurisdiction to impose the punishment on the
petitioner in the appeal filed by the third respondent.?
(ii) Whether there is a remedy of appeal available to the petitioner against the
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impugned order.?
(iii) Whether the order of the MCI can be sustained as being in accordance with
principles of law and justice.?
Point No. (i):
33. The MCI is a statutory autonomous body established under the Indian Medical
Council Act, 1956 (Hereinafter referred to as the “IMC Act”, for brevity) and is
functioning under the administrative control of the Ministry of Health and Family
Welfare of the Government of India. Its functions are,
(i) Maintenance of standards of medical education in the country;
(ii) to provide registration to the individuals who qualify as doctors from the
recognised institutions in India or abroad which is included in the Schedule to
the IMC Act;
(iii) to hold inquiry or disciplinary action against a registered medical practitioner
with regard to any professional misconduct;
(iv) Grant of Letter of permission/renewal of permission in respect of different
medical colleges in India after conducting the inspection of those colleges etc.
34. That Section 20A of the IMC Act empowers the Council to prescribe standards
of professional conduct and etiquette and code of ethics for medical professionals.
Further, Section 33(m) of the IMC Act empowers the respondent — MCI to frame
regulations in that behalf. The said provisions of the IMC Act read as under:
“20A. Professional Conduct.—(1) The Council may prescribe standards of
professional conduct and etiquette and a code of ethics for medical practitioners.
(2) Regulations made by the Council under sub-section (1) may specify which
violations thereof shall constitute infamous conduct in any professional respect, that
is to say, professional
Page: 1851
misconduct, and such provision shall have effect notwithstanding anything contained
in any law for the time being in force
X X X
33. Power to make Regulations.—The Council may, with the previous sanction
of the Central Government, make regulations generally to carry out the purposes of
this Act, and without prejudice to the generality of this power, such regulations may
provide for:
(m) the standards of professional conduct and etiquette and code of ethics to be
observed by medical practitioners.”
35. That in exercise of the powers conferred under Section 20A read with Section
33(m) of the IMC Act, the MCI has framed the Indian Medical Council (Professional
conduct, Etiquette and Ethics) Regulations, 2002, inter alia, prescribing the inclusive
definition of ‘professional misconduct’, the appropriate council for dealing with cases of
professional misconduct, provisions of appeal etc. The relevant portion of the Ethics
Regulations, 2002 relevant for the present controversy is quoted hereunder:
“7. MISCONDUCT : The following acts of commission or omission on the part of
a physician shall constitute professional misconduct rendering him/her liable for
disciplinary action:
………….
7.16 Before performing an operation the physician should obtain in writing the
consent from the husband or wife, parent or guardian in the case of minor, or the
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patient himself as the case may be. In an operation which may result in sterility the
consent of both husband and wife is needed.
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of offences and of
Professional misconduct which are given above do not constitute and are not
intended to constitute a complete list of the infamous acts, which calls for
disciplinary action, and that by issuing this notice the MCI and or State Medical
Councils are in no way precluded from considering and dealing with any other form
of professional misconduct on the part of a registered practitioner. Circumstances
may and do arise, from time to time in relation to which there may occur questions
of professional misconduct which do not come within any of these categories.
Page: 1852
Every care should be taken that the code is not violated in letter or spirit. In such
instances as in all others, the MCI and or State Medical Councils brought before the
MCI and or State Medical Councils.
8.2 It is made clear that any complaint with regard to professional misconduct
can be brought before the appropriate Medical Council for disciplinary action. Upon
receipt of any complaint of professional misconduct, the appropriate Medical Council
would hold an enquiry and give an opportunity to the registered medical
practitioner to be heard in person or by pleader. If the medical practitioner is found
to be guilty of committing professional misconduct, the appropriate Medical Council
may award such punishment as deemed necessary or may direct the removal
altogether or for a specified period, from the register of the name of the delinquent
registered practitioner. Deletion from the Register shall be widely publicized in local
press as well as in the publications of different Medical
Associations/Societies/Bodies.
8.3 In case the punishment of removal from the register is for a limited period,
the appropriate Council may also direct that the name so removed shall be restored
in the register after the expiry of the period for which the name was ordered to be
removed….”
36. That the disciplinary punishment has been imposed on the petitioner for two
misconducts; firstly, that the petitioner has performed an organ transplantation
surgery in a hospital which was not having the required statutory permission for
conducting such procedure and secondly, that the petitioner has not taken the
appropriate informed consent of the patient/attendant in respect of all the surgical
procedures conducted on the patient.
37. It is evident from a plain reading of the above cited provisions that the MCI has
the power and jurisdiction to impose the punishment in question.
38. Point no. (ii) : The IMC Act contemplates the maintenance of a Register of
Medical Practitioners known as the Indian Medical Register, which contains the names
of all persons who are enrolled on any State Medical Register. The Registrar of a State
Medical Council is required to inform the MCI of all additions and other amendments
made, immediately; apart from furnishing a yearly statement on the first day of April,
each year.
Page: 1853
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39. Section 24 of the IMC Act roads thus:

“24. Removal of names from the Indian Medical Register.—If the name of any
person enrolled on a State Medical Register is removed therefrom in pursuance of
any power conferred by or under any law relating to registration of medical
practitioners for the time being in force in any State, the Council shall direct the
removal of the name of such person from the Indian Medical Register.
(2) Where the name of any person has been removed from a State Medical
Register on the ground of professional misconduct or any other ground except that
he is not possessed of the requisite medical qualifications or where any application
made by the said person for restoration of his name to the State Medical Register
has been rejected, he may appeal in the prescribed manner and subject to such
conditions including conditions as to the payment of a fee as may be laid down in
rules made by the Central Government in this behalf, to the Central Government,
whose decision, which shall be given after consulting the Council, shall be binding
on the State Government and on the authorities concerned with the preparation of
the State Medical Register.”
40. It is seen that the petitioner's name is not ordered to be removed from the
State Medical Register pursuant to any order passed under the provisions of the
Karnataka Medical Registration Act, 1961, which is apparently contemplated, under
the above Section. Rather the power exercised is traceable to Regulations 8.2 and 8.3
of the IMC (Professional, Conduct, Etiquette and Ethics) Regulations, 2002. There is no
appeal remedy provided against the same.
Point No. (iii):
41. The entire text of the impugned order is produced herewith, for ready reference,
in proceeding to consider this point.
“Appeal against order dated 02.0G. 2011 passed by Karnataka Medical Council
filed by Sh. Pankaj Rai (F. No. 102/2011):
The Ethics Committee considered the appeal filed by Sh. Pankaj Rai against the
order dated 02.06.2011 passed by Karnataka Medical Council and after deliberating
on the matter at length, the Committee is of the view that in this case the treating
surgeon namely, Dr. Ramacharan Thiagarajan, Fortis Hospital, Bangalore operated
in the hospital which was not
Page: 1854
possessing valid permission issued by Competent Authority for conducting the surgery
for pancreas transplant and failed to take proper informed consent for the entire
procedure of kidney and pancreas transplant surgery.
42. Therefore, the Ethics Committee found that Dr. Ram Charan Thiagarajan had
violated the Indian Medical Council Regulations, especially Clause 7.16 and the
hospital authorities were found to be working illegally as they could not prevent
pancreatic transplant surgery in their hospital, as they did not possess any valid
permission to do so.
43. In view of the above, the Committee decided to impose the following
punishment:
The name of Dr. Ram Charan Thiagarajan be struck of from the Indian Medical
Register as well as from the Register of State Medical Council for a period of one
(01) year.
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The Fortis Hospital is found to have performed pancreatic transplant surgery

without valid permission from the competent authority. The Govt. of Karnataka
(Principal Secretary, Health and Family Welfare) is requested to take suitable action
against the hospital management for conducting pancreatic transplant surgery
without valid permission to do so.
(Dr. P. Prasannaraj)
Additional Secretary
(PROF. SNEH BHARGAVA)
CHAIRPERSON
(Dr. Y.K. Gupta) (Dr. Chander S. Shetty) (Dr. Atul Sood)
Member Member Member
(Dr. B.G. Tilak) (Dr. G.K. Sharma) (Amit Bansal) (Advocate)
Member Member Member”
44. It is to be kept in view that the MCI has proceeded to reverse concurrent
findings of fact in favour of the petitioner. This required that the Council record its
reasons. This is a well recognized principle. In a recent decision of the Apex Court,
Ravi Yashwant Bhoir v. Collector, (2012) 4 SCC 407, on a review of the case law in this
regard, it is opined thus:
“38. It is a settled proposition of law that even in administrative matters, the
reasons should be recorded as it is incumbent upon the authorities to pass a
speaking and reasoned order. In Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC
212 : AIR 1991 SC 537, this Court has observed as under:—
Page: 1855
“36…………. Every such action may be informed by reason and it follows that an
act un-informed by reason is arbitrary, the rule of law contemplates governance by
laws and not by humour, whim or caprice of the men to whom the governance is
entrusted for the time being. It is the trite law that ‘be you ever so high, the laws
are above you.’ This is what men in power must remember always.
40. In L.I.C. v. Consumer Education and Research Centre, (1995) 5 SCC 482 :
AIR 1995 SC 1811, this Court observed that the State or its instrumentality must
not take any irrelevant or irrational factor into consideration or appear arbitrary in
its decision. “Duty to act fairly” is part of fair procedure envisaged under Articles 14
and 21. Every activity of the public authority or those under public duty must be
received and guided by the public interest. A similar view has been reiterated by
this Court in Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836 : AIR 1974 SC
87 and Mahesh Chandra v. U.P. Financial corporation, (1993) 2 SCC 279 : AIR 1993
SC 935.
41. In State of WB. v. Atul Krishna Shaw, 1991 Supp (1) SCC 414 : AIR 1990
SC 2205, this Court observed that : (SCC p. 421, para 7)
“7…. Giving of reasons is an essential element of administration of justice. A
right to reason is, therefore, an indispensable part of sound system of judicial
review.”
42. In S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : AIR 1990 SC 1984,
it has been held that the object underlying the rules of natural justice is to prevent
miscarriage of justice and secure fair play in action. The expanding horizon of the
principles of natural justice provides for requirement to record reasons as it is now
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regarded as one of the principles of natural justice, and it was held in the above
case that except in cases where the requirement to record reasons is expressly or
by necessary implication dispensed with, the authority must record reasons for its
decision.
43. In Krishna Swami v. Union of India, (1992) 4 SCC 605 : AIR 1993 SC 1407,
this Court observed that the rule of law requires that any action or decision of a
statutory or public authority must be founded on the reason stated in the order or
borne-out from the record. The Court further observed : (SCCp. 637 para/47)
47… Reasons are the links between the material, the foundation for their erection
and the actual conclusions. They
Page: 1856
would also demonstrate how the mind of the maker was activated and actuated and
their rational nexus and synthesis with the facts considered and the conclusions
reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair
procedure offending Article 21”
44. This Court while deciding the issue in Sant Lal Gupta v. Modern Co-operative
Group Housing Society Ltd., (2010) 13 SCC 336, placing reliance on its various
earlier judgments held as under : (SCC pp. 345-346 para 27)
“27. It is a settled legal proposition that not only administrative but also judicial
orders must be supported by reasons, recorded in it. Thus, while deciding an issue,
the Court is bound to give reasons for its conclusion. It is the duty and obligation
on the part of the Court to record reasons while disposing of the case. The hallmark
of order and exercise of judicial power by a judicial forum is for the forum to
disclose its reasons by itself and giving of reasons has always been insisted upon as
one of the fundamentals of sound administration of the justice-delivery system, to
make it known that there had been proper and due application of mind to the issue
before the Court and also as an essential requisite of the principles of natural
justice.
‘3……………The giving of reasons for a decision is an essential attribute of judicial
and judicious disposal of a matter before Courts, and which is the only indication to
know about the manner and quality of exercise undertaken, as also the fact that the
Court concerned had really applied its mind.’
The reason is the heartbeat of every conclusion. It introduces clarity in an order
and without the same, the order becomes lifeless. Reasons substitute subjectivity
with objectivity. The absence of reasons renders an order
indefensible/unsustainable particularly when the order is subject to further
challenge before a higher forum. Recording of reasons is principle of natural justice
and every judicial order must be supported by reasons recorded in writing. It
ensures transparency and fairness in decision making. The person who is adversely
affected must know why his application has been rejected.”
45. In Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC
537 : AIR 1987 SC 71, this Court held that on charge of misconduct the authority
holding the inquiry must record reasons
Page: 1857
for reaching its conclusion and record clear findings. The Court further held : (SCC P.
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558 para 30)
“30…. In fairness and justice, the member is entitled to know why he has been
found guilty. The case can be so serious that it can attract the harsh penalties
provided by the Act. Moreover, the member has been given a right of appeal to the
High Court under S. 22A of the Act. To exercise his right of appeal effectively, he
must know the basis on which the Council has found him guilty. We have already
pointed out that a finding by the Council is the first determinative finding on the
guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of
the Disciplinary Committee does not enjoy the status of a ‘finding’. Moreover, the
reasons contained in the report by the Disciplinary Committee for its conclusion
may or may not constitute the basis of the finding rendered by the Council. The
Council must, therefore, state the reasons for its finding”/
46. The emphasis on recording reason is that if the decision reveals the
‘inscrutable face of the sphinx’, it can by its silence, render it virtually impossible
for the Courts to perform their appellate function or exercise the power of judicial
review in adjudging the validity of the decision. Right to reason is an indispensable
part of a sound judicial system, reasons at least sufficient to indicate an application
of mind of the authority before the Court. Another rationale is that the affected
party can know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the order made. In other
words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous
with a judicial or quasi-judicial performance.
X X X
45. In Principles of Administrative Law, authored by Shri M.P. Jain and Shri S.N.
Jain, Fifth Edition, it is opined as follows:—
Adjudicatory bodies in an area may be arranged in a hierarchical structural order.
Before Siemens, the question was considered by the Supreme Court in several
cases whether all such bodies must give reasons for their decisions when a case
moves from the lower to the higher body. Here the Courts have considered several
alternative situations.
(i) The lower authority itself may not give reasons, or may give nebulous or
scrappy reasons. If the appellate authority merely
Page: 1858
affirms such an order without giving any reasons, the order of the appellant authority
will be bad.
(ii) Where, however, the facts are so notorious that the reasons for the
administrative action are too obvious and could not possibly be questioned by
anybody, the fact that no reasons were given by the revision authority may
not vitiate the action (See : Nandram Hunatram v. Union of India, AIR 1966
SC 1922).
(iii) It has also been held that reasons ought to be given by the appellate
authority where it is endorsing the order of the lower authority but the order
of the latter contains several reasons some of which are good and some bad.
The appellate body should at least indicate clearly that it was accepting the
reasons given by the lower authority. (See : Bhagat Raja v. Union of India,
AIR 1967 SC 1606 at 1610).
(iv) An appellate authority must give reasons where it is reversing the order of
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the lower authority, whether the latter has given reasons or not.
(v) A ticklish question is raised, however, when an authority makes a reasoned
order and the appellate authority merely affirms it. Should the appellate body
give its own reasons in such a situation?
46. Earlier a view was expressed that no reasons need be given by the appellate
body in such a situation because it could be assumed that it had accepted the reasons
given by the lower authority. (See : M.P. Industries v. Union of India, AIR 1966 SC
671; CIT v. Pillion, (1967) 63 ITR 411 SC). But then the judicial view underwent a
change and it came to be ruled that the appellate body should give its own reasons
even though it is affirming a reasoned decision of the lower body; at least it should be
indicated clearly by the appellate authority that it was accepting the reasons given by
the lower authority (See : Bhagat Raja v. Union of India, AIR 1967 SC 1606).
47. The said authors have further opined that the simplest and most effective rule
to follow in adjudicatory proceedings will be that every body, appellate or original,
should give its reasons for its decision irrespective of any consideration, unless there is
some reason (security or public interest) for not doing so. The appellate body should
give its own reasons irrespective of the fact whether it is affirming the decision of the
lower body and whether the lower body has given its own reasons.
Page: 1859
48. In “Writs Law and Practice” authored by Shri M.R. Malick, it is opined as
follows:
Except in cases where the requirement of recording of reasons has been
dispensed with expressly or by necessary implication, an administrative authority
exercising judicial or quasi-judicial functions must record the reasons for its
decision. Such a decision is subject to the appellate jurisdiction of the Supreme
Court under Article 136 as well as the supervisory jurisdiction of High Court under
Article 227 and the reasons, if recorded, would enable the Supreme Court or High
Courts to effectively exercise the appellate or supervisory power. But this is not the
sole consideration. Other considerations for the requirement of recording reasons
are — (i) to guarantee consideration by the authority; (ii) to introduce clarity in the
decision; and (iii) to minimize chances of arbitrariness in decision making.
However, it is not required that the reasons should be as elaborate as in the
decision of a Court of law. The extent and nature of the reasons would depend on
particular facts and circumstances (See : D.B. Raji v. H.J. Kantharaj, (1990) 4 SCC
178).
49. However, act of recording reasons may differ from case to case.
50. Recording of reasons are sufficient which may be discernible from the order
itself or contemporaneous record. Therefore, the reasons need not be contained in the
order itself, administrative order itself may contain reasons or the file may disclose
reasons to arrive at the decision showing application of mind to the facts in issue
(See : M.J. Shirani v. State of Karnataka, AIR 1995 SC 1770 : (1995) 6 SCC 289).
51. In his “Commentary on the Constitution of India” by Acharya Dr. Durga Das
Basu, Eighth Edition, Volume 7, it is opined as follows:—
The English Law did not till recently, recognise a general duty to give reasons for
an administrative decision. (See : R v. Secretary of State for the Home Department
export? Doody, (1994) 1 AC 531 : (1993) 3 WLR 154. (1993) 3 All ER 92; R v.
Secretary of State for the Home Department exparte Fayed, (1998) 1 WLR 763 :
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(1997) 1 All ER 228.)

52. Nevertheless, it was equally beyond doubt that such a duty “may in appropriate
circumstances be implied” (by LORD MUSATILL in Doody's case) or as was said in
Fayed's case “it may be a case which is crying for reasons.” An analysis of factors
which will often be material to such an implication is to be found in R v. Civil Service
Appeal Board exparte Cunningham, (1991) 4 All ER 311, wherein it was observed:“The
principles of public law will require that those affected by decisions are given the
reason for those decisions in some cases, but not in others.”
Page: 1860
53. It was held that the absence of reasons for a decision where there is no duty to
give them cannot of itself provide any support for the suggested irrationality of the
decision. The only significance of the absence of reasons is that if all other known facts
and circumstances appear to point overwhelmingly in favour of a different decision,
the decision maker who has given no reason cannot complain if the Court draws the
inference that he had no rational reason for his decision. (See : R v. Secretary of State
for Trade & Industry exp. Lmbro Plc, (1989) 1 WLR 525; Pad field v. Minister of
Agriculture, Fisheries and Food, (1968) AC 1997).
54. Natural justice demands that (1) the applicant be informed of the nature of the
case against him; and (2) he be given a reasonable opportunity to be heard. And, as
has been said, if “opportunity to be heard is to have any value in practice”, the
decision maker must assign or identify the reason for any adverse decision. (See : R.
v. Secretary of State for the Home Department exparte Fayed, (1998) 1 WLR 763 :
(1997) 1 All ER 228.). Thus, the right of hearing and the duty to give reasons are
related, one with the other, and failure to give reasons is, where there is a duty to give
reasons, treated as breach of natural justice.”
55. In USA, the need for an agency to state the reasons was not consistent till
1990. In Dunlop v. Bachowski, (1975) 421 US 560, the Court held that the agency
was required “a statement of reasons………. And the essential facts upon which the…….
Inferences are based, even though there was no statutory requirement of findings or
reasons.
56. The Supreme Court of India has held that withholding reasons amounted to
denial of opportunity of hearing (See : Maneka Gandhi v. Union of India, (1978) 1 SCC
248 : AIR 1978 SC 597).
57. In S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : AIR 1990 SC 1984, it
was observed that except in cases where the requirement of recording of reasons has
been dispensed with expressly or by necessary implication, an administrative authority
exercising judicial or quasi-judicial function must record reason for its decision. In
another case, the Court observed that though the principles of natural justice do not
require reasons for decision, there is necessity for giving reasons in view of expanding
law of judicial review to enable the citizens to discover the reasoning behind the
decision. Right to reason is an indispensable part of a sound system of judicial review.
Under our Constitution, an administrative decision is subject to judicial review if it
affects the rights of citizens; it is, therefore, desirable that reasons should be stated.
(See : Union of India v. Nambudiri, (1991) 3 SCC 38 : AIR 1991 SC 1216).
Page: 1861
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58. In Seimens Engg. Co. v. Union of India, (1976) 2 SCC 981 : AIR 1976 SC
1785, it was held that rule requiring reasons to be recorded is a basic principle of
natural justice. (See : Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978
SC 597; State of West Bengal v. Atul Krishna Shaw, 1991 Supp (1) SCC 414 : AIR
1990 SC 2205). Making a decision without stating reason is a negation of the rule of
law (See : Mahabir Prasad Santosh Kumar v. State of U.P., (1970) 1 SCC 764 : AIR
1970 SC 1302, Govt. Branch Press v. D.B. Belliappa, (1979) 1 SCC 477 : AIR 1979 SC
429; Ram Chandra v. Union of India, (1986) 3 SCC 103 : AIR 1986 SC 1173). It was
held that reasons play a very important factor inasmuch as reasons disclose how the
mind is applied to the subject matter for a decision and that if reasons are disclosed,
in that event, it would reveal the conclusions whether based on actual materials or
not. (See : Union of India v. M.L. Kapoor, (1973) 2 SCC 836 : AIR 1974 SC 87;
Harinagar Sugar Mills v. Shyam Sundar, AIR 1961 SC 1669; Bhagat Raja v. Union of
India, AIR 1967 SC 1606; Travancore Rayons v. Union of India, (1969) 3 SCC 868 :
AIR 1971 SC 862; Rama Varma Bharathan Thampuran v. State of Kerala, (1979) 4
SCC 782 : AIR 1979 SC 1918).
59. In Shri Swamiji v. Commissioner, HR & CE, (1979) 4 SCC 642 : AIR 1980 SC 1,
it was held that reason is the soul of law and when reason of any particular law ceases,
so does the law. In Maharashtra State Board of Secondary & Higher Secondary
Education v. K.S. Gandhi, (1991) 2 SCC 716, it was held that reasons are harbinger
between the mind of the maker of the order to the controversy in question and the
decision or conclusion arrived at and they also exclude the chances to reach arbitrary,
whimsical or capricious decision or conclusion. (See : Gurdial Singh Fijji v. State of
Punjab, (1979) 2 SCC 368; Punjab SEB v. Git Singh, ((2009) 13 SCC 118).
60. The purpose of disclosure of reasons is that people must have confidence in
judicial and quasi-judicial authorities. Unless reasons are disclosed, a person cannot
know whether or not the authority concerned has applied its mind. Also, giving
reasons minimises the chances of arbitrariness. It is also an essential requirement of
the rule of law (See : Chairman, Disciplinary Authority, Rani Laxmibai Kshetriya
Gramina Bank v. Jagdish Sharon Varshney, (2009) 4 SCC 240).
61. In “Public Law” by Dr. Mark Elliott and Dr. Robert Thomas, it is stated as
follows:
Fairness as understood at common law may require the giving of reasons. In
order to decide whether this is so, the reviewing Court examines the circumstances
of the case, balancing any arguments for and against the giving of reasons in order
to come to a rounded view about what, fairness requires. (See : R v. Higher
Education Funding Council exp Institute of
Page: 1862
Dental Surgery, (1994) 1 WLR 242.) Prominent among the factors that weigh in favour
of the imposition of a reason — giving duty is the importance of the right or interest
that is at stake. So if, as in R. Secretary of State for the Home Department exparte
Doody, (1994) 1 AC 531, 564, the decision affects the claimant's liberty, this will be a
strong indication that reasons should be given, as will the fact that the decision
impacts on other important interests such as professional standing, reputation (See :
R v. Ministry of Defence, ex p Murray, (1998) COD 134; R v. City of London
Corporation, exp Matson, (1997) 1 WLR 765 or bodily integrity or bodily integrity
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(See : R (Wooder) v. Feggetter, (2002) EWCA Civ. 554 : (2003) QB 219). A duty to
give reasons is also likely to be imposed in respect of decisions that are aberrant —
that is, decisions that, on the face of it, seem inexplicable, perhaps because they
appear to fly in the face of the great weight of evidence (See : R v. Higher Education
Funding Council exp Institute of Dental Surgery, (1994) 1 WLR 242, 263). On the
other hand, the Court also has to weigh factors that point away from a duty to give
reasons : this may be so where, for example, giving reasons would place ‘an undue
burden on the decision-maker’ or ‘call for the articulation of sometimes inexpressible
value judgments. (See : R v. Higher Education Funding Council exp Institute of Dental
Surgery, (1994) 1 WLR 242, 257).
62. In South Buckinghamshire District Council v. Porter, (2004) UKHL 33 : (2004)

WLR 1953 (36), it was said that while reasons must enable people to understand why
the decision was reached and what the conclusions were on the main points of
controversy, they need refer only to the ‘main issues’ and not to ‘every material
consideration’. It also seems that the Court will take into account the burden that a
requirement to give reasons imposes on the decision - maker : where, for example,
decisions are taken by groups of people, it has been held that it would be unduly
burdensome to require each individual decision maker's thinking to be set out, such
that very broad-brush reasons may suffice in such situations. (See : R (Asha
Foundation) v. Millennium Commission, (2003) EWCA Civ. 88).
63. The standard of reasons required are lucidly expounded in De Smith's Judicial
Review, 6th Edition:
1 It remains difficult to state precisely the standard of reasoning the Court will
demand. Much depends upon the particular circumstances,1 and
Page: 1863
the statutory context in which the duty to give reasons arises. It is clear that the
reasons given must be intelligible and must adequately meet the substance of the
arguments advanced arguments advanced2 . It will not suffice to merely recite a
general formula or restate a statutorily-prescribed conclusion.3
64. It is also preferable if the reasons demonstrate that a systematic analysis has
been undertaken by the decision-maker4 . However, the Courts have not attempted to
define a uniform standard or threshold which the reasons must satisfy, and on
occasion, Courts have expressed concern that decision-makers be granted “a certain
latitude in how they express themselves”5 . The reasons must generally state the
decision-maker's material findings of fact (and, if the facts were disputed at the
hearing, their evidential support6 and meet the substance of the principal arguments
that the decision-maker was required to consider. If a decision is made on
Page: 1864
the basis of the evidence of witnesses or experts, reasons for preferring one witness or
expert over another should generally be explained.7 In short, the reasons must show
that the decision-maker successfully came to grips with the main contentions
advanced by the parties8 , and must tell the parties in broad terms why they lost or, as
the case may be, won’9 .
Provided the reasons satisfy these core criteria, they need not be lengthy10 .
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Judicial review may be inappropriate where the dispute relates to issues about the
precise drafting of a decision11 . Courts should also not
Page: 1865
scrutinize reasons with the analytical rigour employed on statutes or trust

instruments12 , and ought to forgive obvious mistakes that were unlikely to have misled
anyone13 . Some general guidance on the standard of reasons required may also be
derived from a consideration of the purposes served by a duty to give reasons. Thus,
reasons should be sufficiently detailed as to make quite clear to the parties — and
especially the losing party — why the decision-maker decided as it did and to avoid
the impression that the decision was based upon extraneous considerations, rather
than the matters raised at the hearing14 . Reasons must, be sufficient to reveal whether
the tribunal made any error of law.15 Reasons must also enable the Court to which an
appeal lies to discharge its appellate functions, and when this is limited to questions of
law it will only be necessary to explain the exercise of discretion and to set out the
evidence for the findings of fact in enough detail to disclose that the decision-maker
has not acted unreasonably16 . The reasons should refer to the main issues in the
dispute, but need not necessarily deal with every material consideration.17
Page: 1866
65. Brevity is an administrative virtue, and elliptical reasons may be perfectly

comprehensible when considered against the background of the arguments at the
hearing18 . Some decisions (such as the refusal of planning permission by an inspector)
should be accompanied by reasons that are sufficiently precise to permit the individual
to make the modifications necessary to secure a favourable decision in the future, or
(where a Secretary of State disagree with an inspector) to enable an objector to know
what, if any, impact the planning considerations taken into account in a grant of
planning permission may have in relation to the determination of future applications19 .
66. The standard of reasons required in certain specific contexts has been
considered. For example, a mental health review tribunal should explain why one
witness is preferred to another; the reasons should sufficiently inform the patient and
the hospital of the findings of the tribunal; and the Court should take into account the
fact that the tribunal has a legally qualified chairman and that reasons do not have to
be given immediately20 . As for immigration adjudicators, it has been held that there is
no duty on the adjudicator to deal with every argument raised by the Advocate in the
case21 , but the critical matters must be explained sufficiently clearly for the “thought
processes” of the adjudicator on “material findings” to be understood.22
Page: 1867
67. However, whilst concern for the quality of administrative justice does not
require that all tribunals in all circumstances comply with some universally applicable
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standard, it is, nonetheless, essential that the Courts do not allow the duty to give
reasons to atrophy. In principle a remedy ought to lie for failure to give reasons23 ,
unless the Court is satisfied that no real prejudice has been caused to the applicant.24
The reasons given by the reviewing Court can often remedy the shortcomings of the
original decision maker. Whatever standards are applied by judges to the adequacy of
reasons given under a duty, it seems likely that reasons given voluntarily — where
there is no duty — will be reviewed in accordance with the same standards as are
applied to compulsory reasons25 . It is no answer to an attack on the reasons for a
decision on the grounds that they disclose a failure to take into account a relevant
consideration or that an irrelevant consideration was taken into account or an error of
law was made, that there is no requirement to give reasons. The unlawfulness in such
a case lies not in the failure to give proper reasons, but in the unlawful nature of the
decision, reasoning, or failure to reason, thereby disclosed.26
Page: 1868
68. On applications for judicial review, it is the practice of government departments

and public bodies to explain their reasons for their actions irrespective of any legal
obligation to do so, where the outcome of the applications will depend on these
reasons. As Lord Donaldson M.R. has said, judicial review “is a process which falls to
be considered with all the cards face upwards on the table and the vast majority of the
cards start in the authority's hands”27 But in those cases where it is only because of
the demands of procedural fairness or fairness that reasons are given, it may be that a
lower standard applied; reasons may be as brief as a few sentences if that is enough
to convey the substance of the decision28
69. In the light of the above, in the opinion of this Court, the impugned Order is
not sustainable as it does not disclose the reasons that weighed on the collective
wisdom of the Council, in reversing concurrent findings of the lower authorities.
Consequently, the writ petition is allowed and the impugned order is quashed in so far
as it affects the petitioner and the matter is remanded for a fresh consideration, by the
MCI and disposal in accordance with law. Having regard to the fact that the matter has
been hanging fire for several years now it is requested that the MCI expedite further
consideration and pass appropriate orders in accordance with law and in any event,
within a period of four months from the date of receipt of a certified copy of this order.
———
1 R. (on the application of the Asha Foundation) v. The Millennium Commission, [2003] EWCA Civ 88 at [27];
Flannery and Flannery v. Halifax Estate Agencies Ltd., [2011 WLR 377 at 382.
2 (Re Poyser and Mills' Arbitration, [1964] 2 Q.B. 467 at 477-478, is the most frequently cited judicial articulation
of the test of the adequacy of reasons; approved in Westminster CC v. Great Portland Estates Plc, [1985] A.C.
661 at 673; of Save Britain's Heritage v. Number One Poultry Ltd., [1991] 1 WLR. 153 at 165; and Edwin H.
Bradley and Sons Ltd. v. Secretary of State for the Environment, (1982) 47 P. & C.R. 374 (same standard was
applied despite the subjective element in the minister's duty under the Town and Country Planning Act 1971 S. 9
(8) to give such statement as he considers appropriate of the reasons for his decision); Bolton MBC v. Secretary
of State for the Environment (No. 2), [1995] 3 P.L.R. 37).
3 R. v. Birmingham City Council Ex. p.B, [1999] E.L.R. 305 at 311 [Scott Baker J. noting that the letter sent did
“nothing more than make ritual incantation of the two-stage process that is applicable for deciding these
appeals”). However, where the decision involves a clear application of policy, “[t]he reason is the policy”; R. (on
the application of Thompson) v. Secretary of State for the Home Department, [2003] EWHC 538 at [41].
4 (See : e.g. R. (on the application of Lowe) v. Family Health Services Appeal Authority, [2001] EWCA Civ 128 at
[18] (reasons inadequate because they did not deal with the question in correct “logical sequence”); R. v.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Crown Court at Cantebury Ex p. Howson-Ball, [2001] Env L.R. 36 at [32] (referring to a need for the Crown
Court to provide “some analysis” of the relevant matters); Curtis v. Lodon Rent Assessment Committee, [1999]
Q.B. 92 at 118-119 (the rent assessment committee's duty to give reasons required some “working through”, i.e.
an arithmetical explanation, of the assessment)).
5 (R. v. Brent London LBC Ex p. Baruwa, (1997) 29 H.L.R. 915 at 929, approved in William v. Wandsworth LBC,
[2006] EWCA Civ 535 : [2006] H.LR. 42 at [18].)
6 (Cf R. v. Secretary of State for the Home Department Ex p. Swati, [1986] 1 WLR. 477 (passenger refused
entry entitled only to be told the ground for refusal; statement of facts required only after notice of appeal is
given.))
7 (R. (on the application of H) v. Ashworth Hospital Authority, [2002] EWCA Civ 923 : [2003] 1 WLRr. 127 at [81]
R. (on the application of Bushell) v. Newcastle Upon Tyne Licensing Justice, [2004] EWHC 446 at [41] of R. (on
the application of Alliss) v. Legal Services Commission, [2002] EWHC 2079 at [65].)
8 (In addition to Re Poyser [1964 12 Q.B. 467 authority for the proposition in the text can be found, e.g. in : R.
v. Immigration Appeal Tribunal Ex p. Khan, [1983] Q.B. 790; Knights Motors Ltd. v. Secretary of State for the
Environment, [1984] J.P.L. 584; R. v. Mental Health Tribunal Ex p. Pickering, [1986] 1 All E.R. 99; Bolton MBC,
[1995] 3 P.L.R. 37; MIT Securities Ltd. v. Secretary of State for the Environment, (1998) 75 P. & C.R. 188, CAS
v. Special Educational Needs Tribunal, [1995] 1 WL.R. 1627 at 1636; R. v. Immigration Appeal Tribunal Ex p.
Jebunisha Patel, [1996] 1mm. A.r. 161 at 167; Arulandandam v. Secretary of State for the Home Department,
[1996] 1mm. A.R. 587 at 592; R. v. Secretary of State for Education Ex p. G, [1995] E.L.R. 58 at 67; R. v.
Lancashire CC Ex p. Maycock, (1995) 159 L.G. Rev. 201 (“standard letter” with individual variations sufficient in
circumstances); R. v. Lslington LBC Ex p. Hinds, (1996) 28 H.L.R. 302; R. v. Criminal injuries Compensation Board
Ex P. Cook, [1996] 1 W.L.R. 1037 at 1043; R. v. Secretary of State for Transport Ex p. Richmond-upon-Thames
LBC, [1996] 1 WLR. 1460, CA.)
9
(UCATT v. Brain, [1981] I.R.L.R. 224 at 228 (Lord Donaldson M.R. : reasons required of industrial tribunal);
Piggott Brothers & Co. Ltd. v. Jackson, [1991] I.R.L.R. 309 at 313; Ex p. Ross, The Times, June 9, 1994, CA
(prison governor giving reasons for transfer of disruptive prisoner did not need to give “Chapter and verse” of
prisoner's conduct relied upon. See also R. (on the application of Bahram) v. Immigration Appeal Tribunal,
[2003] EWHC 1453 at [8] (Maurice Kay J.:“what is essential is not that an adjudicator should deal with every
point at length, but that the determination should be sufficiently reasoned to enable a claimant, his advisers,
and any appellate or reviewing body, to see why the claimant lost on a particular issue”).
10 (Stefan v. General Medical Council, [1999] 1 W.L.R. 1293 at 1304 (reasons “need not be elaborate nor
lengthy”)
11
(R. (on the application of W) v. Acton Youth Court, [2005] EWHC 954 : (2006) 170 J.P. 31)
12
(Seddon Properties Ltd. v. Secretary of State for the Environment, (1978) 42 P. & C.R. 20; UCATT v. Brain,
[1981] 1 R.L.R. 224)
13 (Elmbvidge BC v. Secretary of State for the Environment, (1980) 39 P. & C.R. 513 at 547-513).
14(See. e.g. R. v. Mental Health Review Tribunal Ex p. Clatworthy, [1985] 3 All E.R. 699 : R. (on the application
of Ash worth) Hospital Authority v. Mental Health Review Tribunal for West Midlands and North West Region,
[200???] EWHC Admin 901 at [77]; South Bucks DC v. Porter (No. 2), [2001] UKHL 3 : [2004] 1 WLR. 1953 at
[36].)
15
(Ashworth Hospital, [2001] EWHC Admin 901 at [77] : South Bucks, [2004] UKHL 33 : [2004] 1 WLR. 1953 at
[36].)
16
(Varndeill v. Kearney & Trecker Marwm Ltd., [1983] 1 C.R. 683 at 693-694. criticizing : the possibly more
stringent test propounded in Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] 1 C.R. 120 at 122; cf.
Thameside MBC v. Secretary of State for the Environment, [1984] J.P.L. 180, where the Court may have set a
high standard to ensure that a peripheral consideration in the determination of a planning appeal had not been
given undue importance. And see R. v. Chief Registrar of Friendly Societies Ex p. New Cross Building Society,
[1984] Q.B. 227.)
17(South Bucks [2004] UKHL 33 : [2004] 1 WL.R. 1953 at [36]; R. v. Criminal injuries Compensation Board Ex p.
Cook, [1996] 1 W.L.R. 1037 at 1043.)
18
(Elliot v. Southwark LBC, [1976] 1 WL.R. 499; R. v. Mental Health Tribunal Ex p. Pickering, [1986] 1 All E.R. 99;
Great Portland Estates Plc v. Westminster City Council, [1985] A.C. 661 at 673. The Courts have recognised
that the decision letters of inspectors are generally more succinct than the report and recommendations by
inspectors together with letter of decision from the Secretary of State in non-devolved appeals. Nonetheless, in
devolved decisions inspectors are held to much the same standard; see Hope v. Secretary of State for the
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Environment, (1975) 31 P. & C.R. 120 : of Ellis v. Secretary of State for the Environment, (1974) 31 p. & C.R.
130; and Hatfield Construction Ltd. v. Secretary of State for the Environment, [1983] J.P.L. 605. And see A.
Barker and M. Couper, “The Art of Quasijudicial Administration : The Planning Appeal and inquiry System in
England” (1983) 6 Urban Law and Policy 363, pp. 454-455, where the increase in Court challenges inspectors'
decisions in the early 1980s is attributed to deficiencies in inspectors' skills in writing decision letters.)
19(Save Britain's Heritage v. Number 1 Poultry Ltd., [1991] 1 WLR. 153 at 167. A mental health review tribunal
should give sufficiently precise reasons to enable patients and medical advisors to cover the matters on a
renewed application)
20 (Ashworth Hospital, [2001] EWHC Admin 901 at [77])
21
(Eagil Trust Co Ltd. v. Piggott-Brown, [1985] 3 All E.R. 119 at 122)
22(English v. Emery Reimbold and Strick Ltd., [2002] EWCA Civ 605 : [2002] 1 WLR. 2409 at [19] (Lord Phillips
M.R.).
23(On an appeal from a decision on a question of law the Courts may well have an inherent jurisdiction to direct
the minister or tribunal to give adequate reasons although no formal application for mandamus has been made;
see Iveagh (Earl) v. Minister of Housing and Local Government, [1964] 1 Q.B. 395 at 410.)
24
(R. v. Livepool CC Ex p. Livepool Taxi Fleet Operators' Association, [1975] 1 W.L.R. 701 at 706; of Preston BC
v. Secretary of State for the Environment, [1978] J.P.L. 548 (omission of significant part of reasoning normally
prejudicial); Save Britain's Heritage, [1991] 1 WL.R. 153. Outside the planning field, however (where the
requirement to demonstrate substantial prejudice is required by statute), the Courts will not readily conclude
that an applicant is not prejudiced by an inadequately reasoned decision. The test may be whether any other
conclusion than that reached was realistically possible : R. v. Ministry of Defence Ex p. Murray, [1998] C.O.D.
134. or whether it is “obvious” that there is no injustice (R. v. Winchester Crown Court Ex p. Morris, [1996]
C.O.D. 104)
25 (Elmbridge BC v. Secretary of State for the Environment, (1980) 39 P. & C.R. 543; Westminster City Council
v. Secretary of State for the Environment, [1984] J.P.L. 27 at 29-30; also Grenfell-Baines v. Secretary of State
for the Environment, [1985] J.P.L. 256 of Kentucky Fried Chicken Pty Ltd. v. Gantidis, (1979) 140 C.L.R. 675. In
R. v. Secretary of State for Transport Ex p. Richmond-upon-Thames LBC, the CA ([1996] 1 WLR 1460) did not
rely upon the suggestion of Jowitt J. at first instance ([1996] 1 WL.R. 1005) that there was no duty to give
reasons in respect of a voluntary consultation)
26
(See, e.g. R. v. Criminal Injuries Compensation Board v. Gambles, [1994] P.I.Q.R. 314 (CICB's reasons
contained a defect such that the decision could not stand, in failing to establish or disclose a rational and
proportionate nexus between the conduct of the applicant and the decision not to offer him even a discounted
award). But see now R. v. Criminal Injuries Compensation Board Ex p. Cook, [1996] 1 WL.R. 1037, CA)
27
(R. v. Lancashire CC Ex p. Huddleston, [1986] 2 All E.R. 941 : OFT v. IBA Healthcare, [2004] I.C.R. 1361)
28 (R. v. Civil Service Appeal Board Ex p. Cunningham, [1991] 4 All E.R. 310).
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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THE DUTY IN CASES OF NERVOUS SHOCK.

as an insurmountable obstacle to the success of a claim brought in respect

Appeal's decision in Dulieu v. White & Sons.l7 The headnote of that

The "rescue" cases, on analysis, similarly afford an illustration of

mental distress or anxiety "unaccompanied by any actual physical

27. Ohester 11. Waverley OIYfPOI'atitm (supra), at p. 12.

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United Kingdom House of

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Die Mercurii, 5° Augusti, 1942

collided with a hearse, damaged it and caused the coffin to be over­

Lord Russell of Killowen

ance with the law of Scotland, as expounded in the numerous

care owed to a particular person, then the party at fault is liable to

be no liability for either direct impact or for nervous shock. Thus,

The particular susceptibility there was to my mind beyond any

questionings on this occasion.

" concerns itself with carelessness only where there is a duty to

In the case of a civil action there is no such thing as negligence

those in the highway but only to anyone turning or intending

down by a negligent motor driver—the man killed and the woman

But that was purely on relevancy. The pursuer succeeded on

(24180r) Wt, 8222—4 16 8/42 D.L. G. 338

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N.R. Fox-Andrews, Q.C., and R.F. Ormrod for the Plaintiff

J. Stirling, Q.C., and E.D. Sutcliff for the Defendants.

Dr. Randall was asked about the warning:

Then I put questions to him:

Then again (ibid., at p. 139)

That concludes what I wish to say on the question of liability.

Judgement for the defendants.

In the High Court of Rajasthan

i) An owner of a car would be liable in damages for an accident caused by his

In the National Consumer Disputes Redressal Commission†

M.K. Gupta … Appellant;

Lucknow Development Authority to have transferred the possession of the house

1964 SCC OnLine SC 38 : (1965) 1 SCR 375 : AIR 1965 SC 1039 :

In the Supreme Court of India

KASTURI LAL RALIA RAM JAIN … Appellant;

11,075-10-0 as the price of the gold and Rs 355 as interest by way of

necessary to refer to these provisions; it would be enough to state that

evidence in the case has to be considered.

activities and had to employ a large army of servants. That is why it

the corresponding Province.

the action. The plaintiff company claimed damages against the

the Supreme Court of Calcutta in the case of the Peninsular and

executive Government, but in performance of a statutory power vested

for the Collector's use, he was employed on a task or an undertaking

cannot be sustained; and so, we inevitably hark back to what Chief

4 ILR 28 Bom 314

5 ILR 39 Mas 351

9 Halsbury Laws of England, 3rd ed Vol II p 8

BEFORE K. JOHN MATHEW AND K. NARAYANA KURUP, JJ.

Joseph alias Pappachan and others … Appellants;

In the High Court of Karnataka

Dr. Rameharan Thiagarajan, FACS … Petitioner;

complaint against the Chairman of the aforesaid Appropriate Authority. The

Welfare Services. Government of Karnataka, seeking Certificates of Registration to

collided with a hearse, damaged it and caused the coffin to be over