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torts:defences-against-tortious-liability

Defences against tortious liability

There are certain justifications which refer only to a particular wrong, or to a small class of wrongs. These are treated in their proper places. But there are other justifications which are common to all kinds of wrongs, and to prevent the repetition of these under every wrong they are collectively treated here. Thus, in this Chapter are discussed, what Pollock calls, “ the rules of immunity which limit the rules of liability. There are various conditions which when present will prevent an act from being wrongful, which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists.” These justifications from civil liability for acts prima facie wrongful are based principally upon public grounds. They are:

  1. Acts of State.
  2. Act of God.
  3. Judicial Acts.
  4. Executive Acts.
  5. Quasi-judicial Acts.
  6. Parental and Quasi-Parental Authority.
  7. Authorities of Necessity.
  8. Private Defence.
  9. Damage incident to Authorised Act,
  10. Inevitable Accident.
  11. Exercise of common Rights.
  12. Works of Necessity.
  13. Plaintiff a wrong-doer.
  14. Leave and License.
  15. Acts causing slight harm.

Acts of State

An act of State has been defined to be:

  1. An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty.1)
  2. An act injurious to the person or to the property of some person who is not at the time of that act a subject of His Majesty ; which act is done by any representative of His Majesty's authority, civil or military, and is either previously sanctioned, or subsequently ratified by His Majesty.2)

As between the Sovereign and his subjects there can be no such thing as an act of State. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper Courts of justice to determine whether it is lawful or not.3)

The doctrine of act of State is summarised as follows: An act done by the authority, previous or subsequent, of the government of a sovereign State in the exercise of de facto sovereignty, is not examinable at all in the Courts of justice of any other State. So far forth as it affects persons not subject to the government in question, it is not examinable in the ordinary Courts of that State itself. If and so far as it affects the subject of the same State, it may be, and, in England, it is, examinable by the Courts in their ordinary jurisdiction.4)

The Lieutenant-Governor of a colony is not exempt from suit in the Courts of that colony for a debt or other private cause of action.5)

In England, after the passing of the Crown Proceedings Act, 1947, it is no defence for the State that the tort committed by its servants was in discharge of obligations imposed by law.

Indian law

During British Rule

The transactions of independent States between each other, were governed by other laws than those which Municipal Courts administer : such Courts had neither the means of deciding what is right, nor the power of enforcing any decision which they may make.6)

The acts of State of which Municipal Courts in India were debarred from taking cognizance, were acts done in the exercise of sovereign powers, which do not profess to be justified by Municipal law. Where an act complained of is professedly done under the sanction of Municipal law, and in the exercise of powers conferred by that law, the fact that it was done by the sovereign power, and was not an act which could possibly be done by a private individual, does not oust the jurisdiction of Civil Courts.7) The legality of the Sovereign's acts towards his own subjects can be questioned in Courts.8)

During the British rule Indian Courts were prohibited from exercising jurisdiction against the Governor General of India, or the Governors of Madras, Bombay, or any Member of their Councils, in respect of anything done by them in their public capacity. The Governor and the Members of his Council were exempted from the jurisdiction of the High Court so far as their acts in public capacity are concerned. No suit in respect of these acts could be maintained against the Secretary of State for India in Council. The control and authority exercised by the Government of India as the paramount power over the Native States was outside the jurisdiction of Municipal Courts.

The seizure by the British Government, acting as a sovereign power, through its delegate the East India Company, of the Raj of Tanjore, with the property belonging thereto, was, with its consequences, an act of State over which a Municipal Court had no jurisdiction.9) The status of the King of Delhi was that of a King recognized by the British Government ; and the confiscation of his territories in 1857 was held to be an act of State, and not an act done under colour of any legal right of which any Municipal Court could take cognizance. In this case the plaintiff sued to recover a sum alleged to be due for principal and interest on certain mortgage bonds executed by the King. It was held that “ Municipal Courts have no jurisdiction to enforce engagements between sovereigns founded on treaties.” His tenure of the territories assigned him by the Government was a tenure merely durante regno, and no power was conferred upon him of creating incumbrances which would survive his deposition.10) By the treaty of the 31st July, 1801, made between the then Nawab in the Carnatac and the Governor in Council at Madras, the Sovereign rights of the Nawab in the Carnatac were vested in the East India Company. Held, that a resumption by the Madras Government of a Jahagir granted by former Nawab, as Altamgah inam, before the date of the treaty, and a, re-grant by the Madras Government to another for a life estate only, was such an act of Sovereign power by the East India Company, as precluded the Supreme Court at Madras from taking cognizance of a suit by the heirs of the original grantee in respect of such resumption.11)

Where a, suit was brought against the Political Agent for prohibiting the guru of the plaintiff's sect from being conducted into a. village and solemnizing marriages between members of the plaintiff's caste ; it was held that the orders complained of had been passed by the defendant in his capacity of Political Agent, and therefore, there was no cause of action. Governor is not liable to a suit in a Court of law or equity for an action done by him in his political capacity as an act of State.12) In a suit for the recovery of certain land of which the British Government on the annexation of the Panjab took absolute possession ; it was held that the land had been seized by the Crown by its right of conquest, and therefore such seizure being an act of State it was not liable to be questioned in a Municipal Court.13)

In a case, at an auction sale for the licenses of the sale of Ganja, etc., the plaintiff was the highest bidder, such bids were recorded and he also paid the deposit due in respect of the licenses amounting to Rs. 968. Subsequently the excise authorities refused licenses to the plaintiff and failed to return the deposit made in respect thereof ; it was held that the act was done by the Government in the exercise of its sovereign power, and that no suit for damage would lie.14) This case was dissented from by the Madras High Court, in a case, where the plaintiff sued to recover a sum of money which was illegally exacted from him as an import duty on salt, and it was held that the suit would lie.15) The plaintiff, a Municipal Commissioner, brought a suit against the Secretary of State for wrongful removal from office. and it was held that, under the Town's Improvement Act, the Governor in Council could only remove an elected Municipal Commissioner for misconduct, and the defendant not having proved misconduct, the plaintiff was entitled to damages.16)

A Mahomedan subject of the Crown was arrested in Calcutta, taken into the mofussil, and there detained in gaol, under a warrant of the Governor-General in Council ; held that such arrest and detainer were not acts of State, but matters cognizable by a Municipal Court.17) A village having been granted in inam by the Peishwa of the Deccan was, after the death of the grantee, seized by the Mamlatdar, or farmer of the revenues, for an alleged debt due to him, and retained until the treaty of Poona in 1818, when it came into the possession of the British Government. On a suit instituted by the representatives of the original grantee, for possession of the village, and payment of the arrears of revenue so sequestered, it was held that the original resumption was the wrongful act of an individual, and not an act of State.18)

Where lands were held by a jagirdar under the Sovereign of an independent state on a jaidad tenure, i.e., on a grant of land, together with the public revenues thereof, on the condition of keeping up a body of troops to be employed when called on in the service of the Sovereign, and on the conquest of the State by the East India Company, the jagirdar remained in the same position to the Company ; it was held that the resumption of the lands by the Company, and the seizure of the arms and stores appertaining to the tenure, on the death of the jagirdar, was not an act of State, and therefore the Municipal Courts had jurisdiction to entertain a suit by the representatives of the jagirdar against the Government for the possession of the land, and for the value of the arms and stores.19) The plaintiff brought a suit at Toungoo in British Burma to recover possession of certain timber, which he alleged the defendants had wrongfully and in collusion with the Burmese Governor of Nigham, taken out of his possession in foreign territory and removed to Toungoo. The defendants stated that they had acquired the timber from the Governor of Nigham in terms of an agreement between them and the Burmese Government. It appeared that the Governor of Nigham had confiscated the plaintiff's timber in contravention of a royal mandate. After the institution, of the suit, the defendants removed the timber from Toungoo to Rangoon. Beld, that a British Municipal Court might enquire into the character of the act of the Governor of Nigham, and was not bound to accept it as an act ot State.20)

Ratification: Plaintiff sued defendant, a naval captain, for burning plaintiff's barracoons and releasing slaves in them ; it was held that the defendant was not liable, having acted in the capacity of the Crown, and the 'Crown having accepted his acts as its own. Ratification of the defendant's Acts by the Ministers of State was equivalent to a, prior command, and rendered it an act of State, for which the Crown was alone responsible.21)

A sequestration by the officers of the British Government of the private property of the Angria of Kolaba, a native independent Sovereign, though made contrary to the express orders of the Court of Directors originally given, would not be liable to question in a Municipal Court if subsequently ratified, but aliter where there is no such ratification.22)

Post Independence

Article 300 of the Constitution of India stated the legal position of State as regards its liability for the tortuous acts of its servants done in course of their employment. The Article provides that the Government of India may sue or be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the dominion of India and the corresponding provinces or the corresponding Indian states might have sued or been sued if this constitution had not been enacted.

Thus, the Union of India and the states are juristic persons by virtue of Article 300 but this Article does not mention those circumstances under which the Union of India and the State Governments can sue and be sued. This Article simply mandates to refer to the legal position prevailing before the commencement of the constitution. The legal position of the State before the Constitution came into force is to be found in the Government of India Act, 1935, which again like the Constitution, said that the position prevailing before the Act of 1935, that is, position as obtaining under the Government of India Act, 1915, shall prevail. The Act of 1915 in a like manner made reference to the Government of India Act, 1858. The Act of 1858 made it clear that the Government was liable for acts of its servants in those cases in which the East India Company would have been liable.

In Peninsular & Oriented Steam Navigation Company v. Secretary of State for India, the plaintiff's horse was injured by the negligence of the servants of the Government. These were engaged at the time of the injury in carrying along a public road a heavy piece of iron for being placed on board a steamer. The plaintiff filed a suit against the Secretary of State for the recovery of damages. Held, the Government was liable as the act in question was not being done in the exercise of any Governmental or sovereign function. Peacock C.J., observed in this case,

There is a great and clear distinction between acts done in exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them. Where the act is done or a contract is entered into, in the exercise of powers usually called sovereign powers, no action will lie.

In State of Rajasthan v. Vidhyawati, the driver of a Rajasthan Government's jeep which was meant for the use of the collector was taking it from the repair shop to the collector's residence. On way, owing to rash and negligent driving, a pedestrian was knocked down and killed. The widow of the victim sued the Government for damages. Held, the State Government was vicariously liable for the tortious acts of its servants, like any other employer.

In Indian Insurance Corporation Asson Pool v. Radhabai, it has been held that taking ailing children to Primary Health Centre in a vehicle belonging to the State Government is not a sovereign function and the State is liable for the accident caused by the negligence of the driver of such vehicle. It was a case decided on the lines of Vidyawati's case.

In State of U.P. v. Hindustan Lever Limited, the act of the Government servants was in exercise of statutory powers but the powers in that case were not sovereign powers, and therefore, the State was held liable.

In People's Union for Democratic Rights v. Police Commissioner, Delhi, the State was ordered to pay compensation to victims of police firing. The police fired without any warning on a group of poor peasants who had collected for a peaceful meeting. Thus, from the above cases it can be concluded that sovereign powers means those powers which can be lawfully exercised by a person by virtue of delegated sovereign powers. It must include maintenance of the army, various departments of the Government for maintenance of public law, order, administration of the country. An easy test to consider that whether a function is a non-sovereign function or not is that if a private individual can be engaged in that function it is a non-sovereign function. Thus, functions relating to trade, business, commerce and the welfare activities are non-sovereign functions.

The present law relating to the vicarious liability of State is not satisfactory in India. A proper legislation is lacking in this regard. It is left to courts to develop the law according to the views of the judges. The citizens are not in a position to know the law definitely. In Kasturi Lal case, die Supreme Court had expressed dissatisfaction at the prevailing position. It said that the remedy to cure this position lies in the hand of the Legislature. In T.V. Nagendra Rao's case also, the Supreme Court suggested for enacting appropriate legislation to remove die uncertainty in this area.

The position prevailing before the commencement of the Constitution remains unchanged though the Parliament and the State Legislature have been empowered to pass law to change the position (Article 300 of Constitution). The unsatisfactory state of affairs in this regard is against social justice in a welfare State. In the absence of legislation, it will be in consonance with social justice demanded by the changed conditions and the concept of welfare State that the courts will follow the recent decisions of the Supreme Court rather than Kasturi Lal.

It emerges from the various decisions (barring recent ones) that the Government is not liable for the torts committed by its servants in exercise of sovereign powers, but for the torts committed in the exercise of non-sovereign powers. Sovereign powers mean powers which can be lawfully exercised only by a sovereign or by a person to whom such powers have been delegated.

There are no well defined tests to know what are sovereign powers. Functions like maintenance of defence forces, maintenance of law and order and proper administration of the country, and the machinery for administration of justice can be included in sovereign functions. Functions relating to trade, business and commerce and welfare activities (viz. running of hospital) are amongst the 'non-sovereign' functions. Broadly speaking such functions, in which private individuals can be engaged in, are not sovereign functions.

Routine activities, such as maintenance of vehicles of officers of the government, also fall within the sphere of 'non-sovereign' functions. The following are the instances of “sovereign” functions:

  1. Maintenance of defence force that is construction of a military road, distribution of meals to the army personnel on duty, checking army personnel on duty. In Baxi Amrik Singh v. Union of India, it was held that the checking of army personnel on duty was a function intimately connected with the army discipline and it could only be performed by a member of the Armed Forces and that too by such a member who is detailed on such duty and is empowered to discharge that function.
  2. Maintenance of law and order that is if die plaintiff is injured while police personnel are dispersing unlawful crowd23), or plaintiff's loudspeaker set is damaged when the police makes a lathi charge to quell a riot.24)

The following are the instances of “non-sovereign” functions;

  1. Maintenance of dockyard.25)
  2. A truck belonging to the public works department carrying material for the construction of a road bridge (Rap Raw Verses The Punjab State), Famine relief work.26)
  3. A Government jeep car being taken from the workshop to the Collector's bungalow for the Collector's use.27)
  4. Taking ailing children to Primary Health Centre in a Government carrier.28)
  5. Carrying military jawans from Railway Station to the Unit Headquarters.29) Similarly, carrying ration and sepoys within the country during peace time in the course of movement of troops after the hostilities were over.30)
  6. Carrying Air Force officers from one place to another in Delhi for playing hockey and basket ball31), or bringing back military officers from the place of exercise to the college of combat.
  7. Taking a truck for imparting training to new M.T. Recruits.32)
  8. Transporting of a machine and other equipment to a military training school.33)
  9. Where some military jawans found some firewood lying by river side and carried the same away for purposes of camp fire and fuel.34)
  10. a 'service' (facility) provided to a 'consumer' within the meaning of the Consumer Protection Act, 1986 is not a 'sovereign' function.35)

Act of God

Vis Msjeur: Act of God may be defined as “circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that result from them”. Ex: The falling of a tree, a flash of lightening, a tornado, storms, tempests, tides, volcanic eruptions, or a flood.

Essential conditions for the availability of this defence are:

  • Externality: There must be working of natural forces without any intervention from human agency, and
  • Unpredictability: The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.
  • Irresistibility: The occurrence must be such that it could not have been avoided by any amount of precaution.

Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence is very limited because with the increase in knowledge the foresight also increases and it is expected that the possibility of the event could have been visualized.

Whether a particular circumstance or occurrence amounts to an act of God is a question of fact in each case and the criterion for deciding it “is no human foresight and prudence could reasonably recognise the possibility of such an event.” There is a tendency on the part of courts to limit the application of the defence of act of God not because of the fact that its application in the cases of absolute liability is diminished but because advancement in the scientific knowledge which limits the unpredictable.

In Ramalinga Nadar v. Narayana Reddiar, the Kerala High Court held that the criminal activities of the unruly mob cannot be considered to be an Act of God.

In Saraswati Parabhai v. Grid Corporation of Orissa and Others, where an electric pole was uprooted and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of Act of God held that it was the responsibility of the Grid Corporation authorities to provide protection in such situation of storm and rain.

Nicholas v. Marshland, The defendant constructed three artificial lakes which were fed by a natural stream. The lakes were well constructed and adequate in all normal circumstances. An extraordinary rainfall burst the banks of artificial lakes on the defendant’s property and the flood water destroyed a number of bridges owned by the county council. It was held that the defendant was not negligent and the accident was due to an act of God.

Judicial Acts

Judge: No action lies for acts done or words spoken by a Judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office.36) The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the Judges, and prevent their being harassed by vexatious actions37) The law requires courage in a Judge, and therefore provides security for the support of that courage.38) Being free from actions, he may be free in thought and independent in judgment.

Under English law in the case of a superior Court it presumed that everything is within its jurisdiction, and plaintiff must prove the contrary ; but in the case of an inferior Court the Judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction, and the act complained of must be of a kind which he had power to do as Judge in that matter.39) But

  1. where the Court has no jurisdiction over the cause, or
  2. where it has exceeded its jurisdiction ; knowledge of the absence or excess of jurisdiction is attributed to the Judge, and he becomes liable.

Indian law

No Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially, shall be liable to be sued in any Court for any act done, or ordered to be done, by him in the discharge of his judicial functions, whether or not within the limits of his jurisdiction, provided that, he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially, shall be liable to be sued in any Civil Court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same.40)

This Act protects judicial officers acting judicially, and also officers acting under their orders. It does not protect judicial officers from being sued in a Civil Court except in respect of acts done by them in good faith in the discharge of their judicial functions.41)

Where an act done or ordered to be done by a judicial officer in the discharge of his judicial duties is within the limits of his jurisdiction, he is protected, whether or not he has discharged those duties erroneously, irregularly, or even illegally, or without believing in good faith that he had jurisdiction to do the act complained of Where the act done or ordered to be done in the discharge of judicial duties is without the limits of the officer's jurisdiction, he is protected if, at the time of doing or ordering it, he in good faith believed himself to have jurisdiction to do or order it.42) The word 'jurisdiction' means authority or power to act in a matter, and not authority or power to do an act in a particular manner or form.

If a Magistrate fail to act reasonably, carefully, and circumspectly in the exercise of his duties, and if, by reason of such failure, he do that for which he has not any legal authority, he cannot be permitted to say that at the time he thus acted, he, in good faith, believed him to have jurisdiction to do the act complained of. Wilful abuse of his authority by a Judge; that is, wilfully acting beyond his jurisdiction; is a good cause of action by the party who is injured.43)

A plaint to maintain an action against a judicial officer must not only aver that the officer had no jurisdiction, but also that he had no reasonable and probable cause for supposing that he had jurisdiction.44)

Members of naval and military Court Martials and Courts of inquiry constituted according to military law enjoy the same immunity, as Judges.

Arbitrators, whom the parties by consent have chosen to be their Judges, shall never be arraigned more than any other Judges.45)) For, if it should be allowed to make arbitrators, defendants, and give them trouble to defend their judgments and set forth the particular reasons upon which they founded their award, it would introduce very great inconvenience, and be a discouragement to any person to undertake a reference.46) Arbitrators, if acting honestly, will not be liable for errors in judgment, or for negligence in the discharge of the duties intrusted to them; but they are liable for fraud or collusion.47)

Juryman: An action will not lie against a juryman for a wrong verdict. Currently jury system is abolished in Inida.

Coroner: A coroner is a judicial officer. No action will lie against him for any matter done by him in the exercise of his judicial functions.48)

Executive Acts

No action will lie in respect of acts done in the course of official duty.49) No action lies against a public officer for the regular enforcement of any sentence or process of any law within the jurisdiction of the Court under whose authority he acts, but he must act in a manner in itself reasonable and in execution of an apparently regular warrant or order, which on the face of it, he is bound to obey. When the Court issuing process has no jurisdiction, officers are liable at Common law.50) As to mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril ; the only exception being on the principle of estoppel, where he is misled by the party's own act.51)

Acts of naval and military officers in the execution of their duty fall under this head. Persons acting under other public authorities are also protected. Police officers are protected in the performance of their executive duties by express legislative enactments in India.52)

Quasi-judicial Acts

These are acts of universities, colleges, committees, inns of court, etc. Persons enjoying quasi-judicial powers are protected from civil liability if they observe the rules of natural justice, and the particular statutory or conventional rules, which may prescribe their course of action. The rules of natural justice are that a man cannot be removed from office or membership unless the person exercising such powers have:

  1. acted in good faith,
  2. given him a fair and sufficient notice of his offence, and
  3. given him an opportunity of defending himself.

If these conditions are satisfied a Court will not interfere, even if it thinks the decision to be wrong.53) If not, the act complained of will be declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly dealt with {Fisher v. Keane, 1 1 Ch. D. 353).

When a Statute gives absolute discretionary powers there is no necessity to show proceedings in the nature of judicial proceedings, and a man can be removed from office or the like without showing any cause at all.

In Nagar v. Municipality of Dhandhuka West, J., said : “ Public authorities even acting within the defined limits of their powers must not conduct themselves arbitrarily or tyrannically.54) Public functionaries, acting within the limits prescribed by the Statute which gives them authority, are not subject to a suit for thus discharging their duties according to their judgment. A public body must keep within its powers, and must use them considerately.55) The public bodies are to be the judges, subject to this, that if they are manifestly abusing their powers the Court will say, it is not a fair and honest judgment, and will not allow it.56)

Parental and quasi-parental authority

Parents and persons in loco parentis are not liable for exercising summary force and restraint, if acting bona-fide and in a reasonable and moderate manner. The same rule applies to custodians of lunatics. In case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified.57)

In England, as per Section 1(7) of the Children and Young Persons Act, 1933, a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer punishment on him.

To an action of trespass for an assault and battery, it is a good plea to plead that the person assaulted was the son of the defendant, and was an infant as defined by the Statute, still domiciled under paternal roof, under the care and control of the defendant, that he behaved saucily and contumaciously to the defendant, and refused to obey his lawful commands, whereupon the defendant moderately and in a reasonable manner chastised his said son58); or that the plaintiff was the apprentice of the defendant and conducted himself improperly and saucily, wherefore the defendant moderately chastised him, as he had a right to do59); or that the defendant was the head-master of a school or college of which the plaintiff was a pupil.60)

Authorities of necessity

The master of a merchant ship has by reason of necessity the right of using force to preserve order and discipline for the safety of the vessel and the persons and property on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. In cases of extreme danger he may inflict punishment without any form of enquiry.61)

It is a good defence to plead that the plaintiff was a passenger by the ship of which the defendant was captain, and that by reason of the plaintiff's conduct it became necessary to the preservation of the discipline or safety of the ship to imprison him.62)

Damage incident to authorized acts

An action will not lie on behalf of a person who may sustain an injury from the execution of powers and authorities given by an Act of Legislature, these powers being exercised with judgment and caution.63) If the thing done is within the Statute, it is clear that no compensation can be afforded for any damage sustained thereby, except so far as the Statute itself has provided it ; and this is clear on the legal presumption that the act creating the damage, being within the Statute, must be a lawful act.64) If no compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done without injury to others.65) But if the statutory powers are exceeded, or are not strictly pursued, or the things authorized to be done are carelessly or negligently done, an action is maintainable for damages.66) If damage could have been prevented by the reasonable exercise of the powers conferred, an action can be maintained.67)

There is a distinction between cases where the Legislature ”directs that a thing shall at all events be done“ and those where it only gives a discretionary power with choice of times and places. Where a discretion is given it must be exercised with regard to the common right of others.

A Statute may authorize an act in three different ways:

  1. The Statute may authorize a nuisance.
  2. It may authorize certain works, provided they can be done without causing a nuisance, or
  3. It may authorize works to be carried out, if possible, without a nuisance, but may authorize the nuisance itself, if necessary, in the last resort.68) And even when a particular thing is required to be done the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance.

As regards statutory powers in general, the Statute will be construed strictly, and, in cases of doubt, in favour of the subject, and against the persons invested with powers. When by a Statute, a particular power is given to do a particular act in a particular manner, the procedure laid down must be adhered to most rigidly, otherwise the protection of the Statute cannot be claimed.69) When a Statute gives a general power, the bona-fide and prudent exercise of that power can be called in question in Civil Courts, and the person exercising such general power must act accordingly.70)

A person seeking the protection of an Act cannot claim that his conduct has any relation to the ” execution of the Act,“ if he knowingly and intentionally acts in contravention of its provisions.(Ranchordas v. Municipal Commissioner of Bombay))

Where the legislature has authorized a railway company to lay down a railway alongside a public highway, it must be presumed to have contemplated the possibility that the railway would be a nuisance to persons using the highway, and that such persons must submit to the inconvenience necessarily resulting from the working of the railway.71) A railway company was held not liable for damage caused by sparks from its engines setting fire to the dried plantation of the plaintiff, as it was authorized to use such engines, and had adopted every precaution which science could suggest to prevent injury.72) But Bramwell, L.J., in Powell v. Fall (5 Q. B. D. 597) remarked that in his opinion R. v. Pease, and Vaughan v. Taff Vale Ry., were wrongly decided. In Powell v. Fall the defendant was possessed of a steam traction-engine, and while it was being driven by the defendant's servants along a highway, some sparks escaping from it set fire to a stack of hay of the plaintiffs standing on a neighbouring farm. There was no negligence in the construction or management of the engine, but it was held that the defendant was liable, on the ground that the engine was a dangerous machine, and, therefore, within the doctrine of Fletcher v. Rylands, and that the locomotive Act did not restrict the Common law liability. In an action by occupiers of houses near a company's station for noises and annoyance caused by cattle and drovers on the company's land, it was held that the appellant company Was not liable.

A District Board was held not entitled to set up a Statute authorizing a small-pox hospital as an answer to an action, or to prevent an injunction issuing to restrain the Board from establishing a hospital inhere the establishment of such hospital would he a nuisance. They must find a different site where they would not be creating a nuisance.73) A gas company was authorized to have its pipes laid under certain streets which were to be repaired by the vestry, and the vestry used steam-rollers of such weight that the company's pipes were broken or injured by pressure, it was held that, even if the use of such rollers was in itself the best way of repairing the streets, the act of the vestry was wrongful.74)

Indian cases: A railway company cannot build workshops so situated, to a neighbour.75) But where the defendant company was authorized to run locomotive engines, the company was held not liable for damage occasioned by a fire caused by a spark from one of the engines, without proof of negligence.76) Where the legislature sanctions and authorizes a railway company the use of a particular thing and it is used for that purpose, the sanction carries with it the consequence that if damage result from it the company is not responsible.77)

Inevitable accident

An injury inflicted by a person upon another may be justified upon the ground of inevitable accident. The word 'accident' has been defined as “such an unforeseen event, misfortune, loss, act, or omission, as is not the result of any negligence or misconduct in the party” applying for relief. An 'inevitable accident' is an accident not avoidable by any such precaution as a reasonable man could be expected to take. It is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed.78) All causes of inevitable accident may be divided into two classes:

  1. those which are occasioned by the elementary forces of nature, unconnected with the agency of manor other cause; and
  2. those which have their origin, either in the whole or in part, in the agency of man, whether in acts of commission or omission, of non-feasance or of misfeasance, or in any other cause independent of the agency of natural forces. The term “act of God” is applicable to the former class.79) and it is therefore not synonymous with that of inevitable accident.80)

The American Courts have laid down the following principles in cases falling under this head. No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. The measure of care against accident which one must take, to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.81) If in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom.82) But if at the time of the accident the person was doing an unlawful act, e.g., committing an assault, he would be liable.

In England, until the beginning of this century, it was supposed that inevitable accident formed no excuse when the immediate result of an act was complained of. But now it has been definitely settled that inevitable accident forms a good defence to an action.83) In order to constitute an inevitable accident it is necessary that the accident should not have been capable of being prevented by ordinary skill and diligence; not extraordinary skill or extraordinary diligence; by that degree of diligence and skill which is generally to be found in persons who properly discharge their duty.84)

The defendants, a firm of carriers, received a wooden case to be carried to its destination and its contents were not known or communicated. On an intermediate station it was found that the contents were leaking. The case was therefore taken to the defendants' offices, which they rented from the plaintiff, and a servant of the defendants proceeded to open the case for examination but the nitro-glycerine exploded, all the persons present were killed, much property destroyed, and the building was damaged. An action was brought by the landlord for damage suffered by parts of the building let to other tenants as well as to the defendants. The defendants admitted their liability as for waste as to the premises occupied by them, but disputed it as to the rest of the building. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage : and nest that, without such knowledge in fact, and without negligence, they were not liable for damages caused by the accident85). The plaintiff's and the defendant's dogs were fighting : the defendant was beating them in order to separate them, and the plaintiff was looking on. But in doing so he accidently hit the plaintiff in the eye causing him a severe injury. In an action brought by the plaintiff, it was held that the act of the defendant in itself was a lawful and proper act which he might do by proper and safe means; and that if, in doing this act, he accidently hit the plaintiff in the eye and wounded him, it was the result of pure accident, and therefore no action would lie.86)

The defendant was out with a pair of horses driven by his groom, and the horses ran away and the groom, being unable to stop them, guided them as best as he could : at last ha failed to get them clear round a corner, and they knocked down the plaintiff : it was held that the defendant was not liable because for the convenience of mankind in carrying on the affaire of life, people as they go along roads must expect, or put up with such mischiefs as reasonable care on the part of others cannot avoid87) Where a pellet glanced from a bough and wounded the plaintiff's eye, it was held that where negligence was negatived an action did not lie for injury resulting by a accident from another's lawful act88) Where an ordinarily quiet horse was being driven along a high road by the defendant, and suddenly bolted and injured the plaintiff's horse, it was held that the defendant was not liable, because the injury to the plaintiff's horse was not attributable to any voluntary unauthorised act or omission of his.89)

Indian case: A servant broke a lamp belonging to his master. There was no special contract between the master and servant as to liability for breakages. Held, that the servant was not liable. A servant, in the performance of his duties, is bound to exercise reasonable care and diligence, such as an ordinarily careful person would use in the management of his own affairs, and where loss happens from mere accident, such as will occur at any time in ordinary life, he is not liable to make it good.90) In A. Krishna Patra v. Orissa State Electricity Board, the Court explained inevitable act and held that an inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all effects on his part to prevent it.

Exercise of common rights

The exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage. It is in reference to such cases that we meet with the phrase damnum sine injuria. Fair competition is in itself no ground of action, whatever damage it may cause.91) Underselling is not a wrong, though the seller may sell some article at unremunerative prices to attract customers, nor is it a wrong to offer advantages to customers who will deal with a trading company to the exclusion of its rival.92)

The removal of soil in a man's own land, though it is the means, by process of a natural percolation, of drying up his neighbour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And, further, it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well, or whether having found its way to the spring or well, it ceases to be retained there.93) Everyone may innocently enjoy his own property as he will. And the right is the same whatever one's motive may be, whether malicious or otherwise. No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious.94)

Plaintiff's mill was worked by a river, supplied by subterranean water produced by the rain fall over a large district ; defendant sank a well on his own land, and pumped up water for the supply of the inhabitants of the district, thereby preventing an enormous quantity of water from ever reaching the river or the mill. It was held that plaintiff had no right of action against defendant. It makes no difference if the well or water course, whose supply is cut off or diminished, is ancient, and also it; matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself.95) The defendant had sunk a deep pit in his own land for mining purposes and kept it dry by pumping in the usual way, with the result of drying up a well which belonged to the plaintiff and was used by him to supply his cotton mill ; it was held that no action lay. ' The person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque injuria which cannot become the ground of an action.96) Where the defendant intended to divert underground water from springs that supplied the plaintiff corporation's works, in order to drive the corporation to buy him off ; it was held that the defendant's conduct was unneighbourly but was not malicious, the object was not harm to plaintiff but gain to defendant97) In this case the dictum in Chasemore v. Richards was approved and the doctrine “animus vicino nocendi ” denied.

Volenti non fit injuria

A plea to an action of tort that the act complained of was done with the consent of the plaintiff is always a good defence, provided the act itself is not a crime.98), upon the principle volenti non fit injuria (that which a person assents to is not esteemed in law an injury). The perfectly sound principle underlying this maxim is daily illustrated in common life. It protects the surgeon who amputates a limb ; the football player, boxer, or fencer, so long as they play fairly according to the rules of the game ; and it prevents a person who chooses to pay a debt barred by the Statute of Limitations, or not enforceable by reason of infancy, from getting, his money back.99) It must also be received with this reservation, that no consent; no leave or license; can legalise an un-lawful act, e.g., fighting with naked fists, a kicking match, a duel with sharp swords.

Thus wilful hurt is not excused by consent or assent if it has no reasonable object, or is necessarily dangerous and likely to cause bodily harm. A license obtained by fraud is of no effect.

A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his freewill. Where the plaintiff has voluntarily put himself in the way of risk, the defendant is not bound to disprove negligence. There is no duty of warning. The doctrine of voluntarly exposure to risk has no application between parties on an equal footing of rights of whom one does not go out of his way more than the other. If the injuries arose out of a risk in respect of which the defendant owed no duty to the plaintiff, or in respect of which the defendant fulfilled such duty as he owed, the action fails, whether or not the plaintiff ran the risk voluntarily, since the defendant has done him no wrong.100)

A trespasser with notice that spring guns were set on the land he trespassed on could not recover for injuries caused by such guns, on the ground that he voluntarily exposed himself to the mischief complained of. But a trespasser wounded in similar circumstances, but without such notice, was held entitled to recover.101)

The obscurity of the maxim lies in the word volenti, the extent of the consent given. Scienti is not volenti. There are degrees of knowledge and even full knowledge that an act is dangerous does not necessarily render the act, if done, a voluntary act.102) For instance, if by a person's misconduct towards another, the latter is placed in a situation which only leaves him a choice between perilous courses, the former is liable for the consequences of whichever course the latter takes ; the latter's knowledge of the risk run by his taking that course is immaterial.

Works of necessity

This exception is based on the maxim ”Salus populi suprema lex“ (the welfare of the people is the supreme law) a maxim founded on the implied assent on the part of every member of society, that his own individual welfare shall, in cases of necessity, yield to that of the community ; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good. There are many cases in which individuals sustain an injury for which the law gives no action; as, where private houses are pulled down, or bulwarks raised on private property, for the preservation and defence of the kingdom against the King's enemies,103)

Acts done of necessity to avoid a greater harm are not actionable, e.g., pulling down houses to stop a fire, casting goods overboard to save a ship or the lives of those on board. But, the private interests of the individual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance.104)

Private defence

Every person has a right to defend his own person, property, or possession. This may even be done for a wife or husband, a parent or child, a master or servant. The force employed must not be out of proportion to the apparent urgency of the occasion. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. The test is whether the party's act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer.

Injuries received by an innocent third person from an act done in self-defence must be dealt with as accidental harm caused from a lawful act.

A man cannot justify for the protection of his own property the doing of an act which causes damage to a neighbour's property.105)

The plaintiff and defendant were both members of a cricket club a match was going on and the plaintiff interfered with the game, and persisted in remaining on that part of the ground reserved to the players, of whom the defendant was one. The latter had him removed forcibly, and in an action of assault justified, among other pleas, on the ground that he was defending the possession of the two elevens engaged in the game, it was held that such a plea could not be supported.106)

Plaintiff the wrongdoer

A plaintiff is not disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction. A trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained.107)

A person, who having occasion to come to the house of another, strays from the ordinary approaches to the house, and trespasses upon the adjoining land, where there is no path, has no remedy for any injury which he may sustain from falling into unguarded wells or pits, as the injury is the result of his own carelessness or misconduct.108)

Acts causing slight harm

Courts of justice generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. Except in the case of acts which if continued or repeated would tend to establish an adverse claim of right, nothing is a wrong of which under all the circumstances a person of ordinary sense and temper would not complain ; but acts which separately would not be wrongs may amount to a wrong by a repetition or combination.

A walks across B's field without B's leave, doing no damage. A has wronged B, because the act, if repeated, would tend to establish a claim to a right of way over B's land. A casts and draws a net in water where B has the exclusive right of fishing. Whether any fish are caught or not, A has wronged B, because the act, if repeated, would tend to establish or claim a right to fish in that water.109)

1) , 4) , 51) , 57) , 61) , 78)
Pollock
2) , 3)
Stephen
5)
Hill v. Bigge, 3 Moor, P. C. 465
6)
Secretary of State for India v. Kamachee
7)
Secretary of State v. Hari Bhanji
8)
In re Ameer Khan; Forester v. Secretary of State
9)
The East India Company v. Kamachee
10)
Saligram v. Secretary of State
11)
East India Company v. Syed Ally
12)
The inhabitants of Mahalingpore v. Anderson
13)
Bhagwan Sing V. Secretary of State
14)
Nobin Chunder v. Secretary of State
15)
Hari v. Secretary of State
16)
Vijaya Raghava v. Secretary of State
17)
In re Ameerkhan
18)
Mills v. Modee Pestonjee; The Bombay Burmah Trading Corporation v, Mahomed Ali
19)
Forrester v. Secretary of State; Sujan Singh v. Secretary of State
20)
Bombay Burmah Trading Corporation v. Mahomed Ali
21)
Buron v. Denman
22)
Zuleef Alii V. Yeahwadabai
23)
State of Orissa v. Padmalochan
24)
State of M.P. v. Chironji Lal
25)
P. & O. Steam Navigation Co. case
26)
Shyam Sunder v. State of Rqjasthan
27)
State of Rajasthan v. Vidjawati
28)
Indian Insurance Co. Assn. Pool v. Radbabai
29)
union of India v. Savita Sharma
30)
Pushpa Tbakur v. UOI
31)
Satya Wati Devi v.UOI
32)
Iqbal Kaur v. Chief of Army Staff
33)
Union of India v. Sugrabai
34)
Roop Lal v.UOI
35)
Lucknow Development Authority v. M.K. Gupta
36)
Anderson V. Gorrie; Scott v. Stanfield
37)
Fray v. Blackburn,
38)
Barnardiston v. Some
39)
Holden v. Smith
40)
The Judicial Officers Protection Act, 1850, s. 1
41)
Venkat v. Armstrong
42)
Teyen v. Ramlal
43)
Amiappa v. Mahomed
44)
Pralhad v. Watt
45)
Morris v. Reynolds
46) , 66)
Addison
47)
Wills v. Maccarmick
48)
Garett v. Ferrand
49)
Sutton v. Johnstone
50)
Clarke v. Woods
52)
Act V of 1861
53)
Dawkins v. Antroous; Allbutt v. Medical Council
54)
Leader v. Moxon
55)
Geddis v. Proprietors of Bann Reservoir
56)
Duke of Bedford v. Dawson
58)
Winterburn v. Brooks
59)
Penn v. Ward
60)
Fitzgerald v. Northcote
62)
Aldworth v. Stewart
63)
Municipal Corporation of Delhi v. Har Parshad, P. R
64)
Duncan v. Findlater
65)
Hammersmith Ry. v. Brand
67)
H. H. the Gaekwar v. Ghandhi Katcharabhai
68)
Truman v. L. B. & S. C.
69)
Sinclair v. Broughton
70)
Brundabun v. Muni. Commissioners of Serampore
71)
R. v. Pease
72)
Vaughan v. Taff Val
73)
Metropolitan Asylum District Board v. Hill
74)
Gas Light Co. v. Vestry of St. Mary Abbotts
75)
Raj Mohun Bose v. E. I.
76)
Halford v. East Indian
77)
H. H. The Gaekwar v. Ghandhi Katchrabhai
79)
Nugent v. Smith
80)
Forward v. Pittard
81)
The Nitro-Glycerine case
82)
Brown v. Kendall
83) , 87)
Holmes v. Mather
84)
The Thomas Powell v. The Cuba
85)
Nitro-Glycerine case
86)
Brown v. Kendall
88)
Stanley v. Powell
89)
JWakenmn v. Mobiiison
90)
Steiert v. Kamma
91)
Gloucester Grammar School
92)
Mogul Steamship Co. v, McGregor
93)
Ballacorkish Mining Co. V. Harrison
94) , 97)
Corporation of Bradford v. Pickles
95)
Chasemore v. Richards
96)
Acton V. Blundell
98)
Edwick v. Hawkes
99)
Bize v. Dickson
100)
Membery v. G. W
101)
Bird v. Holbrook
102)
Thomas V. Quartermain
103)
Plate Glass Co. v. Meredith
104)
Simpson v. Lord Howden
105)
Whalley v. L. & Y. Ry., 13 Q. B. D. 131
106)
Holmes v. Begge
107)
Barnes v. Ward
108)
Bolch V. Smith
109)
Holford v. Bailey


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