Government liability (suits against government)

INTRODUCTION

Originally at common law the crown in England was protected against civil liabilities on the basis of the latin maxim “Re non protest peccare” meaning that the king can do no wrong,and was developed from the case RUSSEL vs. MEN OF DEVO[1] Whereby it was held that, unincorporated town could not be liable for damage cause by defective bridge.

However, even though a king could not be sued still by way of write (petition of right) in matters of contracts and some property actions, the government could be sued. 

In Tanzania the notion of Government liability seem to be into effect after independence where by the law governing the suit against the government came into force.

In 1967 the government of Tanzania sent a bill to the parliament that led to the enactment of the Government Proceeding Act, 1967 [Act no. 6 of 1967] which comes into effect in 1974 after the amendment of Act no 6 of 1967 to become The Government Proceeding Act no 40 of 1974, to date is known as The Government liability Act [CAP 6 R.E 2002]. Though the law required a party before suing to seek for the consent of the Government. In AMANI DAVID MLANGA vs.TIMBER IMPREGNATION LTD.[2] It was held that: it was not necessary to obtain the consent of the minister for legal Affairs even if the court makesan order to join him as a co-deffendant in a suit which was already instituted.

1.1    DEFINITION OF TERMS

Government Liability:  In administrative law government liability is the duty imposed upon the government by the statute of which government upon breach of that duty is directly liable for that breach. It can be breach to provide social services such as education, health service or breach of contract.

Public function: are those duties exercised in terms of social groups of which even the government is duty bound to take care of. Examples providing medicine in hospital ,books in school and providing safe water in cities and even in rural areas 

1.1.2 THE RATIONALE BEHIND GOVERNMENT LIABILITY

To equate the government like any other persons and be held equally liable before courts of law in case any wrong has been committed by the government in breach of contract and in tort. That is to say government is liable as stipulated under section 3(1) and (3) of the government Proceeding Act [CAP 6 R.E 2002].

As matters of contract it is important that the liability assumed by the government when contracting-out particular functions is property considered and analysed and, where necessary is taken into account in assessing the cost benefit to government.

2.0 MAINBODY

Generally, the government can be liable for the activities done by contractors which are defective in nature. As far as the question is concerned government liability for activities of contractors performing public functions arise under the law of negligence and in particular negligence arising as consequence of breach of a contractor of a non-deligable duty of care. 

2.1 CIRCUMSTANCES UNDER WHICH THE GOVERNMENT CAN BE LIABLE FOR ACTIVITIES OF CONTRACTORS PERFOMING PUBLIC FUNCTIONS:-

As a general rule a person will not be liable for the acts of independent contractors. However non-delegable duty of care is significant in that they form an exception to the normal rule.

Government liability arises where it contracts with a contractor to deal with individual health or safety of another. Under this circumstances if the private or independent contractor performs any negligent act which will endanger the health or safety of another entrusted to him the government will be liable.

Also the government can be liable where the contractor fails to provide proper services related to the care of children. For example where the government has contracted with a certain company to provide services to the un privileged/homeless children and in the course of delivering service the company fail in one way or another to exercise its duty hence the government will be held liable for the misconduct of the company.

Moreover where the government fails to supervise and control contractors who had entered into contract to offer medical and hospital services will be liable. in the case of NORTHERN SANDBLASTING VS. HARRIS[3] Brennan C.J held that,” the special duty arises because the person on whom it is imposed has under taken the care, supervision or control of the person or property of another or if so placed in relation to that other or, his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care would be exercised.

In addition to the above point the government will not be exempted from liability merely by employing a qualified and ostensible competent independent contractors but the court will look/intervene the nature of the relationship which give rise to the duty of care and whether duty to take reasonable care is taken. As was held in the case of BURNIE PORT AUTHORITY Vs.GENERAL JONES PTY LTD.[4]

Therefore, the government has responsibility to undertake a positive supervisory role in those contractual arrangement where as a matter of law a non- delegable duty of care arises.

However, currently there are types of relationship which can and does arise in the relationship is employer and employees in relation to a safe system of work. In the case of PICKARD Vs. SMITH[5] the court held that “if a entrepreneur engages independent contractor to do work which might as readily be done by employees in circumstances where there is a risk of injury arising from the nature of work and where there is a need for him to give direction as where and when the work is to be done and to coordinate the various activities, he has an obligation to prescribe a safe system of work.”

Not only that but also the relationship between the hospital and patient may give rise to government liability in that the government will remain liable for the due care of patients despite the introduction of independent contractor who will be immediately responsible for the provision of that care. In the case of ELLIS Vs WALLSEND DISTRICT HOSPITAL[6] where it was stated that, “The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which arises with it a duty to use reasonable care in treatment so that the hospital is liable if a person engaged to perform the obligation on its behalf acts without, due care.”

The liability of government in public hospitals has been extended to cover the use of electronic equipment system controlling sophisticated equipment. Many of the more sophisticated laboratory, x-ray and other diagnostic and treatment services rely extensively on electronic equipments with embedded computer chips and failure of this system, failure of this system could have seriously consequences to patients. Failure of non medical equipments could also seriously affect patients. For example, failure of air condition equipment could close operating theatres. Many devices and installations depends on correct operation of several others items of equipment, there is thus the possibility of multiple simultaneous failures.  

Last but not least, in contracting out of a prison management and prison movement services is another area where non-delegable duty of care is relevant, the duty to provide a safe place of employment can not be delegated and extends to independent contractors in certain circumstances as it was held in the case of STEVENS Vs. BRODRIBB SAO MILLING Co. PTY Ltd.[7]    

Also, similar obligation may arise in cases where the government directs and coordinates activities such as the provision of public transport where the government enters into a contract with a private company to coordinate and offer public transport and while in the cause of performing its function the company causes negligence action to passengers, the government will be liable and not the contractors.

2.2 EXCEPTION FOR GOVERNMENT LIABITY ON CONTRACTORS PERFOMING PUBLIC FUNCTIONS.

Firstly, it may happen in contract between the government and Independent contractors, for example, under circumstance if the private or Independent contractors do agree to provide medicine for the people affected by HIV instead of treating them the medicine kills people. Under this circumstance the Independent contractors could  said  to have commit criminal offence which the government would be out of liability. Therefore, in this situation the government can not be liable for any servant or an agent who commit that criminal offences.  

Secondly, if there were again a contract between the government and Independent contractors to do any public work. Example if there is a contract to construct a road, any problems or danger or default as a professional Independent contractor should have to communicate with the government informing those difficulties failure to do so the government could not be liable. This position was shown in the case of ESTATE OF LYONS VS CAN INSURANCE COMPANIES[8]. It was held that by the CA of Wisconsin that the Immunity of government extend to an Independent contractor insulating from liability for injuries alleged to have been caused by defective design work performed on a public road way and bridge project. This case provides protection of professional independent contractors performing work on public improvement project for state and local government when reasonably precise aspects of the work are directed by the government principal after reviewing potential dangers. However contractors must properly document and inform the government principal of their concerns at the time of project.    

3.0 CONCLUSION

Thus, for the matters of administration of justice under administrative law, it is better that, even the government can be held liable for acts wrongly performed where it had public duty. Also it is of paramount important to asses the contractual arrangements of the government to see whether there are some elements that imposes non-delegable duty of care to the government, if they do exists, measures must be taken  to ensure that appropriate reporting and effective supervision to the government are included in the contractual terms.

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[1] (1778)2 667

[2] [1991] TLR 172

[3] (1997)118 CLR 133

[4] (1994)179 CLR 520

[5] (1860)142 ER 535

[6] (1989) 17 NSW LR 553 pp.567-568

[7] (1986)60 ALJ,R 194

[8] 207 wis 2d 448 (cf. APP.1996)