TORT 107 Public Utilities and Institutions Electricity Police Schools and Hospitals — Law of Torts Notes for Judiciary

Public Utilities and Institutions: Electricity, Water, Fire Services, Police, Prisons, Schools and Hospitals

Two groups of public authority cases raise questions of their own. A supplier of electricity, water or sewerage is handling something that causes catastrophic harm when it escapes, so strict liability enters and the ordinary negligence analysis is often beside the point. An authority holding a prisoner, a patient or a schoolchild has a relationship of control over a person who cannot protect himself, and that relationship supplies the proximity which a general public duty lacks. Beside both runs the narrow tort of misfeasance in public office, which is pleaded constantly and established rarely.

Electricity, water and fire services; police, prisons, schools and hospitals; and misfeasance in public office

1. Electricity

📖 M.P. Electricity Board v. Shail Kumari, (2002) 2 SCC 162, decided 11 January 2002

Facts On 23 August 1997 a man of about thirty seven was cycling along a road in the rain when his bicycle came into contact with a live electric wire lying across it. He was electrocuted and died. The Board denied liability, contending that the wire had fallen because a third party had drawn an unauthorised connection from the line, and that the Board was therefore not at fault.

Held The Board was liable. The claim of the widow and children was upheld.

Ratio A supplier of electricity is under a duty to prevent the escape of the energy it transmits, and to ensure that a wire which has fallen does not remain live on a public road. The defence that a third party had made an unauthorised connection failed: the act attributed to him should reasonably have been anticipated, or at any rate its consequences should have been prevented, and unauthorised tapping is a risk a supplier in India must guard against. The Court applied the principle in Rylands v. Fletcher, and went further, invoking M.C. Mehta v. Union of India: an enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from it, and that liability is not subject to any of the exceptions available under Rylands.

The decision is the clearest Indian application of absolute liability to a public utility, and it removes the stranger defence in electrocution cases where the interference was of a foreseeable kind.
The practical consequence is that a claimant need not prove negligence, and the Board's answer must be that the escape was not from its system at all.
The right of the Board to recover from the person who tapped the line is preserved, and is a matter between them which does not concern the victim.

2. Water, Sewerage and Drainage

Escape of water or sewage onto another's land is a nuisance, and may found a claim under Rylands v. Fletcher where the accumulation was a non natural use.
A contaminated water supply is negligence, and where the contamination is industrial it engages the environmental principles in TORT 081 and TORT 082.
Failure to maintain drains, so that flooding follows a rainfall that was foreseeable, is negligence. The authority's usual answer is that the rainfall was exceptional, which raises act of God.
That defence requires an operation of natural forces so extraordinary that no human foresight could provide against it. Ordinary heavy rain in a place that receives heavy rain every year is not an act of God, however inconvenient: TORT 020.
An uncovered drain is the open manhole case over again, and is decided on the same principles: TORT 106.

3. Fire Services

This is the most difficult of the utilities and the one in which liability is narrowest.
A fire service that does not come, or comes late, has ordinarily committed a nonfeasance. It did not start the fire and it did not make the position worse than it would have been had it never been called.
The law has always been reluctant to convert a public power into a private duty to exercise it, and a general duty to provide a fire service is owed to the public at large.
The claim is strongest where the service attended, took control, and then made things worse, as by turning off a sprinkler system that was containing the fire, or by leaving before the fire was extinguished having assured the owner that it was.
It is weakest where the complaint is that the service should have been better resourced or better distributed, which is a policy question about the allocation of public money: TORT 106.
The same analysis applies to an ambulance service, though there the relationship with the particular patient, once the call is accepted, comes closer to an assumption of responsibility.

4. Police and Prison Administration

Negligence in the custody of a person or of property is actionable, and the State answers as an employer.
A failure to protect a prisoner from other prisoners, or from himself, engages the duty that arises from custody: the authority has taken a person into its control and removed his ability to protect himself.
A failure to provide medical care in custody is actionable on the same footing.
A person taken into custody in health and produced injured or dead calls for an explanation, and the absence of one is itself evidence. Res ipsa loquitur applies with particular force in custodial cases, because the facts are peculiarly within the knowledge of the authorities and the victim is in no position to prove them.
A failure to protect a member of the public from a known and specific threat may found a claim, though the courts are slow to convert a general duty to keep the peace into a private right of action.
In practice such claims are now brought as constitutional torts under Article 32 or Article 226, where sovereign immunity is no defence, fault need not be proved and the relief is quicker: TORT 052, TORT 053 and TORT 054.

5. Schools

A school owes a duty of care to the children entrusted to it, and supervision is part of it.
The standard is that of a careful parent, applied to the circumstances of a school with many children and a limited number of adults, and it rises with the danger of the activity and falls with the age and sense of the children.
It covers the premises, the equipment, the playground, the laboratory, excursions and sports, and the safety of any transport the school arranges.
It extends to the period before and after class hours where children are on the premises with the school's knowledge, and to the dispersal of children at the end of the day.
It overlaps occupiers' liability, examined in TORT 045 and TORT 046, where the complaint concerns the state of the premises rather than the conduct of an activity.
Corporal punishment is prohibited by section 17 of the Right of Children to Free and Compulsory Education Act, 2009, and the defence of parental authority is correspondingly confined: TORT 064.

6. Public Hospitals

A government hospital answers on the same principles as a private one, running a hospital being no part of the inalienable functions of the State.
It is liable vicariously for the doctors, nurses and technicians it employs, and personally for its own failures of organisation: staffing, equipment, systems, infection control and records: TORT 042.
V. Krishnakumar v. State of Tamil Nadu, decided 1 July 2015, is the leading Indian illustration: a premature infant was not screened for retinopathy of prematurity within the critical window, contrary to the established protocol, and went permanently blind. The State, the hospital and the doctors were held liable.
That the treatment was given free does not exclude liability in tort, whatever the position under the consumer legislation.
Sovereign immunity is no answer, and is no answer at all where a fundamental right has been violated.

7. Misfeasance in Public Office

What must be proved	What it means
A public office	The tort can be committed only by a public officer, and only in the exercise or purported exercise of his public function. A private person cannot commit it
Targeted malice, or knowledge of illegality	Either an intention to injure the plaintiff or a class of which he is one; or knowledge that the act was unlawful and that it would probably injure him, or reckless indifference to both
An identifiable plaintiff	Who has suffered identifiable harm. A general sense of public grievance is not enough
Causation	A causal link between the impugned exercise of power and the loss

It requires far more than an invalid, unreasonable or arbitrary decision. Those are corrected on judicial review and do not by themselves sound in damages.
Common Cause v. Union of India, (1999) 6 SCC 667 is the standing warning. On review the Supreme Court recalled an award of Rs 50 lakh in exemplary damages made against a Minister whose allotment of petrol outlets it had found arbitrary and nepotistic, holding that arbitrariness alone, however plain, is not the tort, and that exemplary damages must rest on a clear and rational basis.
The subject is examined fully in TORT 052.

⚠ Why custody changes the analysis

The cases in this note fall into two very different groups, and the difference is worth naming because it explains why some public authority claims succeed easily and others almost never do. In the utility cases the authority is handling something dangerous for its own purposes, and the law responds by dispensing with fault altogether: Shail Kumari applies absolute liability to an electricity board in terms. In the custodial and institutional cases the authority has taken a person into its control, a prisoner, a patient, a schoolchild, and by doing so has removed that person's ability to look after himself. The duty there is not strict, but it is easily established, because the relationship supplies exactly the proximity that a general public duty lacks: the authority is not being asked to protect the world, only the person it has taken charge of. What both groups have in common is that the claimant is not complaining about the level at which a public service was resourced. That is why the fire service cases, where the complaint usually is about resourcing, sit at the difficult end, and why a claimant in that position must find something the service actually did, and did badly, rather than something it failed to do at all.

8. The Position Stated Shortly

1. M.P. Electricity Board v. Shail Kumari holds a supplier of electricity liable for a fatal electrocution from a fallen live wire, applying Rylands and going on to M.C. Mehta.

2. The defence that a third party had drawn an unauthorised connection failed, such interference being foreseeable and its consequences preventable.

3. Escape of water or sewage is nuisance and may be Rylands; a contaminated supply is negligence; and a failure to maintain drains is negligence unless the rainfall was truly extraordinary.

4. Act of God requires natural forces so extraordinary that no human foresight could provide against them, and ordinary heavy rain is not one.

5. A fire service that does not come has ordinarily committed a nonfeasance, and the claim is strongest where it attended, took control and made things worse.

6. Negligence in custody is actionable, and res ipsa loquitur applies with force because the facts are peculiarly within the authorities' knowledge.

7. Custodial claims are now ordinarily brought as constitutional torts, where sovereign immunity is no defence.

8. A school owes a duty of supervision measured by the standard of a careful parent, rising with the danger of the activity and falling with the age of the children.

9. A public hospital answers like any other, and that treatment was free does not exclude liability in tort.

10. Misfeasance in public office requires a public office, targeted malice or knowledge of illegality, an identifiable plaintiff and causation, and arbitrariness alone is not the tort.