Constitutional Law-Government's liability' for tortious acts of its of/iciau-
Liability of officials for their own acts

1tIegligence-Public official-Policeman acting in execution of,dufY. and f{)r,p~
tection of public-Rescue of valuables from shop threatened with fire

Public Official-Police-Mamurs-l'owers to commit acts in execution of dIIty _
that would otherwise be tortious-Liability of Government for tortious iIcu,
of its officials

• Court: Osborne 1.

Tort-Vicarious Liability-s-Govemment's liability for tortious acts of its ofJiciah

                -Negligence                                               .

A fire broke out near appellant's shop. The Mamur ordered the shop
to be broken into for the purpose of rescuing goods inside and as a pre-
caution against the spread of the fire. Appellant alleged that as a result
certain of his property was lost. He sued respondent in negligence as vi-
cariously liable for the tortious acts of the Mamur.

Held: (i) The English rules (a) that the Crown is not answerable at
law for the tortious acts of its servants done in their official capacity, and
(b) that a servant of the Crown is. responsible at law for his own tortious
acts, even though they were done by the authority of the Crown, are to be
applied in the Sudan, with such qualifications as the differences of place,
conditions and social development between the two countries indicate to be
necessary.

(ii) Where a servant of the Government is made liable for his own
tortious acts which were done with the -authority of the Government, the
Government may have a moral duty; but not a legal 'duty, to indeinnify the
servant to the extent of his liability.

Raleigh v. Goschen [1898] 1 Ch. 73 approved.

English Public Health Act 1~75 (Amended 1907), ss. 87, 308.

Appeal

The facts as they appear from the case file are as follows:

Appellant 'was accustomed to keep his business moneys in two
locked, steel boxes, which he kept in his shop in Suakin. While at
home he was told that a fire had broken out near his shop. He im-
mediately hurried to the shop, where he found that the door of the
shop had been broken in, and that his two steel boxes were lying in
the middle of the street, surrounded by a crowd. They had been
forced open and were empty. The fire had not yet reached the shop.

The Mamur, who was present, told appellant that he had ordered
the shop to be entered, and the boxes removed. Appellant asked why,
and the Mamur replied that it was part of his duty in preventing the
spread of the fire, and rescuing property. Appellant asserted that
the boxes were fireproof. The Mamur handed to appellant a dura
sack taken from another shop, which he said contained the moneys
taken from the boxes. Appellant could not open the sack 'and count
the moneys at once; because of the great crowd of people present.
Having withdrawn from the crowd and opened the sack, he found it
contained £E.500, which, he. alleged, was substantially less than ,the
two boxes had contained.

Appellant sued respondent as responsible for the wrongful acts
of the Mamur, in the Port Sudan .District Court, alleging negligence-

of the Mamur.: in that either (1) the Mamur had no' legal right to
give the orders in questioD;,. or, if he had (2) that there was no
reasonable justification in the circumstances for giving such orders, or,
if there were, (3) that the Mamur had permitted his orders to be
carried out negligently. In either event, the negligence of the Mamur
had caused the loss of the moneys which had been in the boxes, but
were not in the dura sack. Respondent denied all these allegations,
and asserted that, even if they were true, there could be no liability
for the tortious acts of the Mamur. Judgment was given for re-
spondent on all points. Appellant appealed.

November 21, 1922. Osborne J.: This is an appeal against the
decision of the District Judge at Port Sudan dismissing the plaintiff's
claim against the Sudan Government in a suit in which the plaintiff
claimed damages for alleged loss of money and valuables caused by
the action of the Mamur of Suakin in ordering the plaintiff's shop to
be broken open and its contents removed during the progress of a fire
in the town which threatened, as it is alleged, to destroy the shop and
others in the vicinity.

The plaintiff's case has not been put very lucidly, for he was un-
able to speak either, English or Arabic and was not represented by
counsel either before the District Court or at the hearing of the appeal.
As I understand him, however, he denied the right of the Mamur to
give such an order: he further alleged that there was no reasonable
.justification for such an order in the circumstances and that, even if
the order was lawfully given and justifiable per se, there was negligence
in carrying it out and that the loss sustained by him was caused by
that negligence.

A point was made for the defence that in fact the actual amount
of the alleged loss, if any, was never proved by the plaintiff. The
district judge noticed this point but does not appear to have considered
it as formally in issue and merely recorded his opinion to the effect
that he had no reason to doubt the plaintiff's. statement as to the
amount.

The district judge further held that the Mamur's action was right
and proper and that as executive officer in charge he carried out his
duties to the best of his ability under trying circumstances. He also.
found that the allegation of negligence in ·the execution of the order to
break open the shop and remove the contents was not proved, though
he animadverted upon the failure of the defence to call rebutting evi-

dence. He then proceeded to consider the points of law as to whether
the Government could be held liable and whether the action -was
properly brought against Government at all. On these points he came
to a conclusion adverse to the plaintiff although I am not sure that
the statement of his reasons is very clear.

It is obvious that the points of law in this case are of the greatest
importance and I think that they should be particularly emphasised
in view of the exceedingly unsatisfactory nature of the evidence be-
fore the court upon the points of fact.

The district judge has, as I have said, found it possible to arrive
at certain definite conclusions in regard to those points of fact. I am
exceedingly doubtful if I could have done so myself on the evidence,
especially in regard to the allegation of negligence, but if I· agree gen-
erally in regard to his finding on the points of law, I need notice the
.facts no further.

It is unfortunate that the plaintiff in addition to the disability he
was under of not speaking either of the languages of the court, was
not represented by counsel at the hearing of the appeal.. lIe could
not deal and did not attempt to deal with the points of law involved,
and all that is left for me to do is to scrutinize the argument put
forward b>, the representative of the Advocate General. I have not
had the advantage of hearing argument on the other side.

The power of the police to enter or break into a building ad-
joining or near to the site of a fire without the consent of the owner
for the purpose of rescuing any property therein from fire is statutory
in England, and full compensation is to be made by the local authority
to any person sustaining damage by the reason of the exercise of this
power "in relation to any matter as to which he is not himself in de-
fault." (Public Health Acts and Amendments)", But no such enact-

 The relevant statutory provisions were as follows:

The Public Health Acts Amendment Act 1907, section 87: "Any po-
lice constable acting under the orders of his superior officer, and any mem-
ber of the fire brigade of the local authority being on duty, and any
officer of the local authority, may enter and if necessary break into any
building in the district being or reasonably supposed to be on fire, or any
building or land adjoining or near thereto, without the consent of the
owner or occupier thereof respectively, and may do all such acts and things
as they may deem necessary for extinguishing fire in any such building or
protecting the same or rescuing any person or property therein from fire."

The Public Health Act 1875, section 308: "Where any person sustains
any damage by reason of the exercise of any of the powers of this Act, in

ment exists in the Sudan and in any case the words "in relation to
any matter . . . default" seem to me vague in meaning and applica-
tion and moreover the remedy is against the local authority and not
against the Crown.

I think that the proposition that the Crown is not answerable
at law for the tortious acts of its servants done in their official capacity .
is sufficiently well established in England, though the principle is
equally to be accepted that a servant of the Crown is responsible in
law for a tortious act done to a fellow subject though done by the
authority of the Crown. There is no remedy against the Crown: there

        is against the individual.                                       

The decision in Raleigh v. Goschen [1898] I Ch. 73, noted by
the Advocate General is clear enough and seems to me to be in point
subject only to such qualifications as may occur to the mind upon a
consideration of the differences in the circumstances surrounding the
present case. I refer, of course, to differences of place, conditions,
social development and the like between the two countries whatever
their effect may be.

I am of opinion that these differences are not such as to lead me
to reject the principle underlying the English decision. The suggestion
that the Sudan Government is liable for the tortious acts of its servants
seems to me to be a most dangerous one and my conclusion must be
that this action is misconceived. An action would doubtless have lain
against the servants of the Government in their individual capacity
and there may even be a moral right upon the Government in cer-
tain circumstances to idemnify such servants in the event of their being
condemned in damages at the suit of the plaintiff, but I must hold that
no suit of the nature now before the court will lie against the Sudan
Government and that the appeal must be dismissed.

Appeal dismissed
Editorial note: The old English rille cited in the above judgment on the
liability of the Crown for the tortious acts of its servants done in their official

relation to any matter as to which he is not himself in default, fu1l com-
pensation shall be made to such person by the local authority exercising

    such powers.

This section was repealed by the (English) Public Health Act 1936,

  Third Schedule, part I.                                             

As to section 87 of the Act of 1907,. see now the (English) Fire Serv-
ices Act 1947, section 30 (1), the provisions of which are very similar.