IMPORTANT POINT
The main legal point established in the judgment is the duty of care and negligence in maintaining law and order, and the State's liability for damages caused by a bomb blast.

JUDGMENT :

The decree in a suit for damages is under challenge by the defendants.

2. The plaintiff is an employee of Indian Coffee House. On 16.07.1999 at about 1.50 p.m., while the plaintiff was walking along the footpath in front of the Attakulangara Sub Jail, somebody threw an explosive at certain accused who were under judicial custody and were being brought to the jail. The plaintiff sustained severe injuries. Consequent on the explosion, one among the accused died. The other accused sustained severe injuries. Consequent on the injury, the plaintiff suffers 50% disability. The suit was laid claiming an amount of Rs.10 lakhs as damages.

3. The defendants contended that there was no negligence on their part in maintaining law and order and that they are not liable for any damages.

4. The trial court granted a decree for Rs.5 lakhs.

5. I have heard the learned counsel on either side.

6. Relying on the judgments in Hill (Administratrix of the Estate of Jacqueline Hill deceased) (A.P.) v. Chief Constable of West Yorkshire (1990) 1 WLR 946, and Robinson v. Chief Constable of West Yorkshire Police (2018) UKSC 4, the learned Government Pleader would contend that, while analysing the question the court has to bear in mind the three tier test of duty of care, foreseeability and remoteness. Whether there was a duty of care, a reasonable foreseeability of such incident, and whether the damages was the direct consequence of breach of such duty of care are all matters to be considered, it is argued. The State had taken reasonable care by deputing two police constables with the accused who are in judicial custody. There was no intelligence report with regard to any apprehended violence. Therefore, the suit ought to be dismissed, it is argued.

7. In Hill’s case supra, one Jacqueline Hill was murdered by an unapprehended criminal. He had committed 13 murders. Her mother sued the police for damages on the ground of negligence. It was alleged that the police had a duty to apprehend such a hard-core criminal and that their failure led to her daughter’s murder. The claim was rejected. It was held that, by common law police officers owe to the general public a duty to enforce the criminal law but it cannot be extended to individual members of the public without satisfying the test of foreseeability. It was held that, the foundation of the duty of care was said to be, reasonable foreseeability of harm. In Robinson’s case (supra), Mrs.Robinson was knocked down in the course of a scuffle that occurred while two police men were apprehending a drug dealer. She suffered injuries due to the fall. She sued for damages. The claim was rejected by the Court.

The court referred to “the Caparo test” laid down in Caparo Industries plc v. Dickman [1990] 2 AC 605 that, “The court will only impose a duty where it considers it right to do so on the facts”. Answering the question as to what would the public think if the police, in the process of arresting criminals, could injure innocent members of the public with impunity it was answered that, if they act with reason, the public would prefer to see them doing their job and taking drug dealers off the street. It was observed, “If the police are not under a duty of care, then it is irrelevant to the issue whether they acted within reason or not. On the other hand if they act with reasonable care, then they will not be in breach of a duty of care, even if an innocent member of the public is injured”.

8. In Smith v. Little Woods Organisation Ltd., (1987) 1 All ER 710, it was observed that, generally speaking, the law does not impose liability for mere omissions. Salmond on Jurisprudence, 12th edition, p.352 states thus, “An omission consists in not performing an act which is normally expected of you either because you normally do it or because you ought to do it, and it is the latter type of omission with which the law is concerned. But while omissions incur legal liability where there is a duty to act, such a duty will in