Report No. 01
30. Section 2(3).-
Sub-section 3 imposes liability upon the Crown in respect of functions conferred or duties imposed upon an officer of the Crown by any rule of common law or by statute as if the Crown itself had issued instructions lawfully to the officer to discharge the duty or exercise the functions. The reason for this provision is the decision in Stanbury v. Exeter Corporation which held that a corporation was not liable for the negligence of a veterinary inspector appointed by them to exercise the functions imposed by the statute and the directions issued by the Board of Agriculture. Darling J., pointed out that the local authority which appointed the Inspector would be liable if he acted negligently purporting to exercise the corporate powers and not if he acted in the discharge of some obligation imposed upon him by a statute.
The relationship between the local authority and the officer in respect of such a duty would not be that of master and servant as it had no control over the servant when he discharges the statutory obligations. On the analogy of that decision, it is possible to argue that where a statute or common law imposes a function upon an officer of the Crown rather than upon the Crown itself, the liability of the Crown would be limited to the appointment of a competent officer and the Crown would not be liable for torts committed by him in the discharge or purported discharge of a function.
This principle was applied in Australia in Enver v. King, 3 CLR 969 The peace officer in that case was not the agent or servant of the appointing authority, for, in the preservation of peace his authority is original and is exercised in his own discretion by virtue of his office. His powers under the law being definite he is not held out by the authority who appointed him as having any greater authority than was lawfully his2.
It is to meet such a situation that the provision in section 2(3) is made. In view of section 11, it may be possible to argue by virtue of the fiction imposed by this sub-clause that the Crown must be deemed to have issued instructions lawfully and since such instructions could only be issued by virtue of the prerogative of the Crown, the Crown may not be liable at all. But it is a matter for judicial interpretation and it is difficult to venture a definite opinion at this stage.