Remaining General Defences

5. Private Defence

If the tort is committed by a person acting to protect

him/herself, members of his/her family or his/her property,
or even persons generally, there will be no liability if the
action is a reasonable response to the harm threatened.

 In other words, no action is maintainable for damage

done in the exercise of one’s right of private defence of
person or property provided that the force employed for the
purpose is not out of proportion to the harm apprehended.
Turner v. Jagmohan Singh, ILR (1905) 27
A vicious stallion repeatedly attacked a pair of mares
belong to the carriages in which the defendant was being
driven, and finally came into the defendant’s compound in
spite of attempts made to prevent him, and continued his
attacks until the defendant getting hold of a spear inflicted
somewhat severe wound on the left hind quarter of the
stallion. After this the stallion made off, but subsequently
died from the effects of the wound.

 It was held that the defendant’s action was justifiable and

the owner of the stallion was not entitled to any damages.
Morris v. Nugent, (1836) 7 C & P 572
The defendant was passing by the plaintiff’s house. The plaintiff’s
dog ran
out, and bit the defendant. On the defendant’s turning round,
raising his
gun, the dog ran away and he shot the dog as it was running away.

 It was held that the defendant was not justified in doing so. To
justify the
shooting of the dog, he must be actually attacking the party at the
time
Sections 96-106 of the Indian Penal Code

As per section 96 IPC nothing is an offence which is done in

the exercise of the right of private defence.

Further section 97 authorises one to exercise right of private

defence to protect one’s person and property and also that of
other person, subject to restriction as placed under section 99
that there is no right of private defence against any act which
does not reasonably cause the
apprehension of death or of grievous hurt, if done…the right
of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence
6. Statutory Authority
Statutory authority means “an authority or power given
by law to do certain acts and if a tort is committed in the
course of any such act, the injured person will have no
claim unless the act has been done negligently”.

The basic philosophy behind the statutory immunity is

that the lesser private right must yield to the greater
public interest.

The extent of the protection available to a public

authority depends on whether the authority is absolute
or conditional. Such a condition may be express or
implied.
In case of absolute statutory authority the immunity is
available
against both the act and its natural consequences.

If absolute, then the authority is not liable provided it

has acted reasonably and there is no alternative course of
action.

 e.g. to acquire land for the laying down of the railway

track; the noise and vibration will be caused by running
the train on it
 Government can acquire land even against the will
of people for the development purpose as they have
statutory authority; but a builder cannot force one to
sell his property under the garb of development, as
he has not statutory authority

If an act is done in pursuance of a mandatory

provision of law the authority executing that
mandate is not liable for any loss which is caused to
the plaintiff if that authority has been negligent in
performance of the duty.
Ram Gulam v. Government of the United Province, (1951) 1 All. 135
 Certain ornaments were stolen from the house of the plaintiff. On
a search made by the police they were recovered from another
house and produced as exhibits at the trial of those who were
prosecuted in connection with the theft. Thereafter they were kept in
the Collectorate godown from where they were again stolen and
could not be traced.

 The Plaintiff sued the Government of the United Provinces for

recovery of the ornaments, and in the alternative for the recovery of
their price

It was held that the Government was not liable as the alleged
tortuous act was performed in discharge of an obligation imposed by
law. [Also see Kasturilal v. State of U.P. AIR 1965 SC 1039]
Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679

The defendants were not liable for fires caused by sparks

from engines since they were obliged to operate a railway
and had done so with proper care.

Where the authority is conditional, the public authority

has the power to act but is under no duty to do so, and it
may carry out the relevant act only if there is no
interference with the rights of others.
No one can remove property out of one’s possession, however
traffic police can remove vehicle which is obstructing the traffic or is
parked in no parking zone. However one who is residing nearby an
airport cannot complain of the noise created by the operation of the
airport.

Metropolitan Asylum District Board v. Hill, (1889) LR 4 PC 628

A local authority being empowered by a statute to erect a small-pox
hospital was restrained from erecting it at a place where it was likely
to prove injurious to the residents of the locality.

The authority to construct a hospital was construed as impliedly

conditional only, i.e. to erect the hospital provided that the hospital
authorities selected a site where no injurious results were likely to
be caused to others
Fisher v. Ruislip-Northwood
 The local authority had, by statute, been given power
to erect air-raid shelters on the highway. In the black-
out, Fisher drove his motor cycle into such a shelter, and
was injured. When sued for the tort of public nuisance,
the Council pleaded that it had statutory authority to put
up the shelter.

 The defence failed, because the Council could, even in

the black-out, have put up small, shaded warning lights
for motorists. The Council only had statutory authority
on condition that it was exercised with care for the
safety of others
 (7) Mistake
The general rule is that mistake, whether of the law or
of fact, is no defence in tort.

A defendant cannot argue that he or she did not know

the law relevant to his or her case.

The maxim ignorantia legis non excusat i.e.

ignorance of the law is no excuse, applies.
In respect of a mistake of fact, there are some exceptions to the rule.
They are:

Malicious Prosecution: If a police officer or private prosecutor

commences a prosecution under the mistaken belief that the plaintiff is
guilty but the plaintiff turns out to be innocent, this will provide a
defence to an action for malicious prosecution

False Imprisonment: If a police officer, without a warrant, arrests the

plaintiff in the mistaken belief of reasonable suspicion that a person has
committed an arrestable offence, the police officer is not liable for false
imprisonment. The police officer has to show he had grounds for his
beliefs.

A trespass to land is actionable per se. so a trespass on to land which

the trespasser mistakenly but honestly believes belongs to him, or he
believes he has right of entry to, can be liable for trespass.
(8) Contributory Negligence/Plaintiff’s own
default
 This defence is normally raised to actions for negligence.

It arises when damage is suffered partly by the fault of the

defendant and partly by the fault of the claimant.

 The defendant, therefore, attempts to reduce the damages by

proving that the claimant was himself partly responsible.

In England, the Law Reform (Contributory Negligence) Act, 1945

provides that in such cases the court shall reduce the damages by an
amount proportionate to the claimant’s share of responsibility
Sayers v. Harlow (1958)

 Mrs Sayers found herself locked in a public lavatory. Unable to

summon help, she tried to climb out over the top of the door.
She found this impossible and, when climbing back down,
allowed her weight to rest on the toilet roll which ‘true to its
mechanical requirement, rotated’. Mrs. Sayers fell and was
injured.

 It was held that 75% of her injury was the fault of the Council
for providing a defective lock which jammed, and 25% was her
own fault.
Stapley v. Gypsum Mines Ltd (1953)
Two miners who worked, in breach of instructions,
under a dangerous roof were held 80% contributory
negligent.

Froom v. Butcher (1976)

A front seat passenger injured in a car accident had his
damage reduced
by 25% because he had not worn a seat belt.
NEW DEFENCES
(9)Parental or Quasi Parental Authority
 Parents and persons in loco parentis have a right to
administer punishment on a child for the purpose of
correction, chastisement of training.

 However one must remember that such an authority

warrants the use of reasonable and moderate
punishment only and therefore, if there is an
excessive use of force, the defendant may be liable
for assault, battery or false imprisonment, as the
case may be
 In England, as per Section 1(7), 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

 In Fitzgerald v. Northcote,
It was observed “The authority of a schoolmaster is while it
exists, the same as that of parent. A parent, when he places his
child with a schoolmaster, delegates to him all his authority, so far
as it is necessary for the welfare of the child
The authority of a teacher to correct his students is:

 not limited only to the wrongs which the student

may commit upon the school premises

but may also extend to the wrongs done by him

outside the school because there is not much
opportunity for boy to exhibit his moral conduct while
in school under the eye of the master the opportunity is
while he is at play or outside the school.
R. v. Newport
 It has been held that if the school rules
prohibited smoking, both in the school and in the
public, the school master was justified in caning a
student whom he had found smoking cigarette in a
public street.

 Reasonable professional behaviour, rather than

perfection, is the norm
 10. Judicial or Quasi-Judicial Acts
 No action lies for acts done, or words spoken, by a judge in
exercise of his judicial office, although they may be malicious.
 It is founded on the principle of public benefit that Judges should
be at liberty to exercise their function independently and without
fear of consequences

 Judicial Officers’ Protection Act, 1850 grants protection to a

judicial officer for any act done or ordered to be done by him in
the discharge of his judicial duty.
 He is protected even though he exceeds his jurisdiction provided
that at that time he honestly believed that he had jurisdiction to
do or order the act complained of.
Section 1 of the Act reads as follows:
“No Judge, Magistrate, Justice of the Peace, Collector or other
person acting judicially shall be liable to be sued in any civil court
for any act done or ordered to be done y him in the discharge of
his judicial duty 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 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.”
 Limits of such protection
• No such protection is granted if a magistrate is acting
mala fide and outside his jurisdiction.
Sailajanand Pandey v Suresh Chandra Gupta, AIR 1969
Pat.
The magistrate acting mala fide, illegally and outside
his jurisdiction, ordered the arrest of the plaintiff.
The Patna High Court held that he was not entitled to
the protection given by the Judicial Officer’s
Protection Act, 1850 and was, therefore, liable for the
wrong of false imprisonment.
The protection of judicial privilege applies
only to judicial proceedings as contrasted
with administrative or ministerial
proceedings and where, a judge acts both
judicially and ministerially or
administratively, the protection is not
afforded to the act done in the later
capacity
State of U.P. v. Tulsi Ram, AIR 1971 All. 162

 Five persons were prosecuted for certain offences. One of them was
acquitted by the Sessions Court and another by the High Court. The High Court
upheld the conviction of only three of the five persons and authorised the issue
of warrants against these three convicted persons.
 The judicial magistrate acting negligently signed an order for the arrest of
all the five persons.
As a result of this order, the plaintiffs, even though they had been acquitted
by the High Court, were arrested by the police.

They filed a suit claiming compensation of Rs. 2,000 from the judicial officer
and the State of U.P. stating that their arrest before their relations and friends
on the day of Holi festival had caused much humiliation, disgrace, physical
discomfort and mental suffering to them
The lower appellate court held that the judicial officer was
protected by the Judicial Officer’s Protection Act, 1850 but
the State of U.P. was vicariously liable and passed a decree of
Rs. 500 against the state of U.P.
The Allahabad High Court, on an appeal made by the State
of U.P. held that the State was not liable because the act
done by its servant was in the discharge of his duties
imposed by law.
Further, it held that the judicial officer was liable for the
wrongful arrest of the plaintiff-respondents as the judicial
officer was not exercising any judicial function but only an
executive function while issuing warrants and therefore, the
protection under the Judicial Officers’ Protection Act, 1850
could not be available in this case