Report No. 01
The Law in England
12. In England, from very early times the King could not be sued in his own courts and the maxim that the "King can do no wrong" was invoked to negative the right of a subject to sue the King for redress of wrongs1. The rigour of the immunity, however, was relaxed by making a petition of right available to a subject for redress only in respect of certain wrongs relating to contract or property.
In the beginning even the procedure by way of Petition of Right was cumbersome until it was modified by the Petitions of Right Act, 1860. But this Act did not alter the law relating to torts. The injustice of applying the rule of immunity was, however, realised very soon by the Crown and compensation was paid in proper cases by settling the mafter with the injured person. But this was as a matter of grace and not as of right. When the officer or servant who committed the tort was known and was impleaded as defendant in an action, the Crown stood by him and met his liability.
In very many cases, however, it was not possible to fix the liability upon a particular servant or officer of the Crown. The device, therefore, of impleading as defendant any officer of the Crown and defending the action in his name was adopted. But this practice was condemned by the House of Lords in Adams v. Naylor, 1946 AC 543 which was followed later in Royster v. Cavey, 1947 KB 204. These decisions gave the immediate provocation to revive the Bill of 1927, relating to Crown Proceedings and finally led to the passing of the Crown Proceedings Act, 1947.
1. Vide Canterbury v. Att. General, I phillips, 306 (327).
13. There was another method by which the person injured could get the remedy not only against the servant but also against certain public authorities, or public corporations. Owing to the increase in governmental activities in a welfare State, the government departments were separated and were given the position of statutory corporations with the right and liability to sue and to be sued. There are now as many as 31 departments.
Some of them are parts of the Crown, some are incorporated either by statute or by Crown and some, though not incorporated, have been given the power to own property or to enter into contracts and to sue and be sued in respect of the same. The Ministry of Fuel and Power Act, 1945, section 5(1), Ministry of Civil Aviation Act, 1945, section 6(1), Ministry of Defence Act, 1946, section 5(v)(i), Merchant Shipping Act, 1894, section 460(1), Post Offices Act, 1908, section 45(1) give some examples of departments which could be sued, but there is no specific provision in the Acts except two, i.e. Merchant Shipping Act and Ministry of Transport Act [section 26(1)], for liability for torts of the servants and agents of the department.
Notwithstanding the absence of an express provision making the corporations liable for torts, it was held that the very corporate existence carried with it the right to sue and the liability to be sued. This was the view of Phillimore J., in Grahams case (1901) 2 KB 78, followed in Ministry of Works v. Henderson, (1947) 1 KB 91 see also 1941 AC 328 : 19 Can Bar Rev 543 and the view of Phillimore J., though there was difference of opinion, prevailed. The question was debated whether the immunity of the Crown would not extend to such departments and corporations.
In the recent case of Tamlin v. Hannaford, (1951) 1 KB 18 the question arose whether the Rent Restriction Acts would apply to houses owned by the railway authorities. Though the Transport Commission is a public authority and exists for public purposes, it was held that it was in no sense a department of the Government and its powers did not fall within the province of Government. On this ground it was decided that the immunity of the Crown did not extend to the Transport Commission and that it was bound by the Rent Restriction Acts.
14. In Mersey Docks Harbour Board v. Gibbs, 1866 LR 1 HL 93 Blackburn J., held that in the absence of anything showing a contrary intention in the statutes which create such corporations, the true rule of construction is that the legislature intended that the liability of the corporation thus substituted for individuals should, to the extent of the corporate funds, be co-extensive with that imposed by the general law on the owners of similar works. It followed, therefore, that these corporations could be made liable for the torts committed by their servants.
But the liability did not extend to the departments of Government which were not corporations. It may be possible that notwithstanding their corporate existence they may yet be considered to be agents, or servants of the Crown. Prof. W. Friedman examined the legal status of the incorporated public companies in a learned article in 22 Australian Law Journal, page 7.
He divided public corporations into two categories: industrial and commercial public corporations such as the National Coal Board, Electricity Authority, Transport Commission and Airways Corporation and Social Service Corporations such as the Town Development Corporations, Regional Hospital Boards, the Central Land Board and the Agricultural Land Commission.
The first category of corporations, it would be seen, are merely substitutes for private enterprise and are designed to run an industrial or public utility service according to economic or commercial principles but in the interests of the public. They are, therefore, undoubtedly liable for torts committed by their servants and the immunity of the Crown does not extend to them. There is no reason to place social service corporations on a different footing.
The learned author concluded that the very corporate existence carried with it the liability to sue and to be sued and that there was no relationship of master and servant or principal and agent between the corporations and departments of the Government. The liability of the Hospital authorities was originally negatived but after they were taken over by the State, it was held recently that the hospital authorities were liable for torts committed by the negligence of the staff (Cassidy v. Ministry of Health, (1951) 2 KB 343).
The test of control to determine the relationship of master and servant is now changed to that of organisational liability. To a large extent, therefore, liability for torts committed by servants, where incorporated departments were substituted for private enterprise, was transferred to such authorities and the rigour of the immunity rule was in practical working modified by the device of incorporation. After the Crown Proceedings Act, the position of public corporations in relation to the Crown raises the question whether they are servants of the Crown within the meaning of section 2(6) of the Act. The question has not yet been finally settled by the courts in England.