October 4, 2022

Medical Negligence II- Vicarious liability of State for the negligence of its employees

Vicarious liability means to hold liable the employer or master for the wrongful act of its employee or servant. And negligence means, Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do.

As an employer, the state may be liable on the wrongful act of its employees but it is not liable ipso facto.

The position may be explained as follows-

State of Rajasthan Vs. Mst. Vidhyawati

In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR 1962 SC 933) the question arose with regard to the various liability of the State of Rajasthan.

In that case a vehicle owned by the State of Rajasthan, which was being driven by its driver, met with an accident which resulted in the death of one person. The death was caused due to the negligence of the driver.

The two contentions of the State of Rajasthan were that under Article 300 of the Constitution, the State would not be liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force. Secondly, it was contended that the jeep which was driven rashly and negligently was being maintained by the State in exercise of its sovereign powers and was not a part of any commercial activity of the State.

Rejecting the said contention this Court held that “the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer.

Sovereign and Non-Sovereign Powers

Kasturi Lal Ralia Ram Jain Vs. The State of Uttar Pradesh

This question again came up for consideration in Kasturi Lal Ralia Ram Jain Vs. The State of Uttar Pradesh. (AIR 1965 SC 1039).]

In Kasturi Lal’s case gold had been seized and the same had been kept in a malkhana. The appellant demanded the return of this gold but the same was not returned. It appeared that the same had been misappropriated by the person in-charge of the malkhana.

The respondents therein claimed that it was not a case of negligence by the Police officers and even if negligence was proved the State could not be held to be liable for the said loss. While holding that there was negligence on the part of the police officers, Court denied relief by observing that the powers which were exercised by the police officers could be properly characterized as sovereign powers and, therefore, the claim could not be sustained.

The Court distinguished the decision in Vidhyawati’s case by observing:

“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 or 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….”

Explaining the distinction between the two types of cases, it was also observed as follows;

“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 powers, so that if acts are committed by Government employees in relation to other activities which may be conveniently described as nongovernmental 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 Rajasthan.”

N. Nagendra Rao and Company Vs. State of Andhra Pradesh (1994 (6) SCC 205)

In Nagendra Rao’s case some goods had been confiscated pursuant to an order passed under Section 6 A of the Essential Commodities Act, 1955. The said order was annulled but due to the negligence of the officers concerned goods were not found to be of the same quality and quantity which were there at the time of its confiscation. The owners of the goods refused to take delivery and filed a suit claiming value of the goods by way of compensation.

The High Court of Andhra Pradesh held that the State was not variously liable for negligence of its officers in charge of their statutory duties. Negativing this, supreme Court while allowing the appeal observed at page 235 as follows:

“In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional government, the State cannot claim any immunity.

The determination of various liability of the State being linked with negligence of its officer, if they can be sued personally for which there is no death of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rational for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.”

State of Maharashtra & Ors. Vs. Kanchanmala Vijay Singh Shrike & Ors. ( JT 1995 SC 155).

A similar view has been taken in Kanchanmala Vijaysingh’s case (supra) where, dealing with a claim for compensation arising as a result of an accident with a jeep belonging to the State, it was observed as follows:

“Traditionally, before court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear from different judicial pronouncements that the fault is being read as because of someone’s negligence or carelessness. Same is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee.

Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligence or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment.

In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside.”

Achutrao Haribhau Khodwa vs State of Maharashtra; 1996 SCC (2) 634, JT 1996 (2) 624

Above mentioned cases were also referred in the present case. This case was filed when due to negligence of doctor, a mop (towel) was left in the body of the woman who went through the operation of sterilization after delivering a child. Due to the negligence of the doctor, the woman died even after the second operation when mop was wiped out form her body.

The High Court in the case, observed that the government cannot be held liable in tort for tortious acts committed in a hospital maintained by it because it considered that maintaining and running a hospital was an exercise of the State’s sovereign power. But, supreme court did not accept this conclusion.

The supreme court while holding liable to the state, made following important observation-

“Running a hospital is a welfare activity undertaken by the government but it is not an exclusive function or activity of the government so as to be classified as one which could be regarded as being in exercise of its sovereign power. In Kasturi Lal’s case itself, this Court noticed that in pursuit of the welfare ideal the government may enter into many commercial and other activities which have no relation to the traditional concept of governmental activity in exercise of sovereign power. Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character. This being so, the State would be variously liable for the damages which may become payable on account of negligence of its doctors or other employees.”

Reference

Achutrao Haribhau Khodwa vs State of Maharashtra; 1996 SCC (2) 634, JT 1996 (2) 624