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Report No. 01

29. Section 2(2).-

In order to exclude from the purview of the Act public duties and Governmental functions, sub-section (2) of section 2 limits the responsibilities of the Crown for Breach of a statutory duty only if such statutory duty is also binding upon persons other than the Crown and its officers; in other words, it is a duty imposed both upon the Crown and its officers and other persons as well, e.g., under the Factories Act.

But there are other Acts which impose a statutory duty upon private persons but which do not bind the Crown. And the Crown in such cases naturally relies upon the presumption that an Act of Parliament is not binding unless the Crown is expressly mentioned or is bound by necessary implication. The propriety of the continuance of this rule in a modern State is doubted by some jurists but the Crown Proceedings Act [section 40(2)(f)] preserves the presumption, for it says:

"That except as therein otherwise expressly provided, nothing in this Act shall affect any rules of evidence or any presumption relating to the extent to which the Crown is bound by any Act of Parliament."

Most of the legislation imposing liability upon a private employer is excluded by this rule and the Crown is not liable for breach of such statutory duties. When the Crown enters the field of industry and engages labour, there is no reason or justification for putting itself in a different category from that of an ordinary employer. The Crown must set the example of following the principle of equality before the law and should not stand apart from the subjects.

Liability of the State in Tort Back

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