You Can Sue a Statutory Body for Negligence or Malice – But If Negligence Is Barred, Only Malice Applies

Supreme court recently held that when a statutory body exercises its discretion improperly, a person can normally bring a case based on either negligence (culpa) or malice (dolus). Both grounds of action are recognised under the principles of the old Lex Aquilia, as past cases like David v. Abdul Cader and Corea v. Corea have shown.

However, where the statute itself excludes negligence, the picture changes. In the case of the National Medicines Regulatory Authority (NMRA), Section 143(2) shuts the door on negligence claims. That means the only cause of action available against the NMRA for an invalid exercise of discretion is one based on malice or bad faith.

The Court stressed that alleging malice is not enough, it must be proved with certainty. Following the principle in Singer Sewing Machine Company v. Bowes: Malice must be pleaded in detail; The wrongdoer must be identified with reasonable certainty; and The Plaintiff must show the act was done with a deliberate intent of malice.

A corporate body can in law act with malice or be vicariously liable for its servants, but general accusations aimed at the institution as a whole will not stand.

What Happened in This Case

The plaintiff accused the NMRA of maliciously delaying the grant of licences. But no specific official or employee was named. There was no proof of ill-intent, and no “directing mind” within the Authority was identified.

The judges saw this as nothing more than a bare allegation. With no clear evidence of malice and no individual tied to the alleged wrongdoing, the case had no real cause of action. As Justice De Sampayo explained long ago in Lowe v. Fernando, a cause of action requires both a right and its violation by a named wrongdoer. Here, that essential link was missing.

The Court also cautioned trial judges not to “open the floodgates” for lawsuits against statutory bodies every time someone is unhappy with an administrative decision. Unless mala fides are pleaded and proved with certainty, such claims cannot succeed under Section 143(2).

“…On the question of the availability of actions founded upon negligence (culpa) and malice (dolus) in relation to the exercise of statutory power, I observe that Sri Lankan jurisprudence recognizes the concurrent availability of both causes of action under the principles of the Lex Aquilia – see David v. Abdul Cader1. For causes of action founded upon malice or mala fides in the case of an invalid exercise of discretionary power – see Corea v. Corea……………..it is manifestly clear that only actions founded on mala fides (i.e malice or bad faith) are maintainable against the NMRA, whilst any other action, including one predicated on negligence, is by necessary implication excluded. Section 143 (2) further stipulates that in order to succeed in an action grounded on malice (dolus), the Plaintiff  must establish that the impugned act was committed by a person with the requisite intent of malice…………………A legal person, like a natural person, can be held to have acted with malice, and could therefore become liable in damages or injuria under the Actio Injuriarum; or in the alternative it can become vicariously liable for an injuria committed with malice by its agent or servant……” Justice A.H.M.D. Nawaz

Cause of Action: ‘The Media Upon Which a Plaintiff Asks the Court to Decide in Their Favour’

“…De Sampayo, J. articulated the following view in Lowe Vs. Fernando  “The expression ’cause of action’ generally imparts two things, viz, a right in the plaintiff and a violation of it by the defendant, and cause of action means the whole cause of action i.e. all the facts which together constitute the plaintiff’s right to maintain the action, (Dicey’s parties to an action Ch. XI Sec. A) or, as it has been otherwise put, the media upon which the plaintiff asks the court to arrive at a conclusion in his favour (Lord Watson’s judgement in Kaur vs Singh). This was also emphasized in Narendra Vs. Seylan Merchant Bank and reiterated by Dheeraratne, J. in Eksith Fernando Vs. Manawadu and Others….” – Justice Nawaz

Case No: SC / CHC / APPEAL / 38 / 2022 [ Decided on 21.05.2025]

Before: A.H.M.D. Nawaz, J Achala Wengappuli, J & Sobhitha Rajakaruna, J