Justification of torts

Acts of State
• English Law- between sovereign and its subject
there is no such thing as an act of State.
• But when the person or property of a person who
is not a British subject and who is not residing in
British territory is injured by an act “done by any
representative of her majesty’s authority, civil or
criminal, which is sanctioned previously or ratified
after, no remedy for such an act is an act of State.
• An act of State is outside the ordinary law
• Buron v. Denman (1848)
• Eshuhbay v. officer , government of Nigeria, 1931
• WALKER V BAIRD AND ANOTHER: PC 4 AUG 1892
A treaty, which does not terminate a state of war,
has no legal effect upon the rights and duties of
the subjects of the Crown and speaking generally
no power resides in the Crown to compel them to
obey the provisions of a treaty, or to expel them
without supporting legislative authority. 
 Johnstone v. Pedlar 1921
• he now respondent, a naturalised USA citizen, had sued the
appellant, the chief Commissioner of the Dublin
Metropolitan police complaining of an unlawful detention,
and continued retention of money taken on his arrest for
militarily drilling disaffected persons. He had been
prosecuted for allegation under the defense of the realm act
• Held: ‘Aliens, whether friendly or enemy, can be lawfully
prevented from entering this country and can be expelled
from it.
• But No defense as he still has allegiance to the crown
because of his residence
 Indian Law
• Act of State is not available against the Indian
citizen
• Secretary of State In Council of India V
Kamachee Boye Sahab: PC 9 JUL 1859
• State of Saurashtra v. mohammed Abdulla,
1962
 Judicial Acts
• English law- a Judge acts within jurisdiction’
no action lies for acts done, words spoken, in
the exercise of his judicial office irrespective of
his bad motive or intention
• Remedy is an appeal
 Sirros v Moore [1974]

• Facts
• Sirros, the plaintiff, was an alien, who visited the UK, who was fined and
recommended for deportation for breach of Aliens Order 1953.
• The plaintiff appealed against the recommendation. At the hearing, the circuit
judge dismissed the appeal.
• The plaintiff started to make his way out of the court room and the judge asked
the police officers to stop him. He was arrested brought back into court. The
plaintiff’s counsel submitted that he should not be detained and asked for a bail.
• The judge refused to grant bail and the plaintiff was taken away in custody. On the
next day, the Divisional Court granted the plaintiff a leave to move due to the writ
of habeas corpus. Nine days later the Divisional court granted a writ of habeas
corpus on grounds that the circuit judge had been functus officio when he
ordered the plaintiff’s detention. The plaintiff claimed damages for assault and
false imprisonment against the defendants – the circuit judge and the police
officers.
•  Lord Denning MR discussed the immunity of judges from suit: ‘no action is
maintainable against a judge for anything said or done by him in the exercise of a
jurisdiction which belongs to him.
• The words which he speaks are protected by an absolute privilege. The orders
which he gives, and the sentences which he imposes, cannot be made the subject
of civil proceedings against him.
• No matter that the judge was under some gross error or ignorance, or was actuated
by envy, hatred and malice, he is not liable to an action. The remedy of the party
aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ
of error or certiorari, or to take some such step to reverse his ruling.
• Of course, if the judge has accepted bribes or been in the least degree corrupt, or
has perverted the course of justice, he can be punished in the criminal courts. That
apart, however, a judge is not liable to an action for damages. The reason is not
because the judge has any privilege to make mistakes or to do wrong. It is so that
he should be able to do his duty with complete independence and free from fear .
• MC C V MULLAN: HL 1984
• The Magistrate had passed a custodial sentence on
a minor without complying with a statutory
provision which required him to inform the offender
of the right to Legal Aid. 

• Held: The House reaffirmed the common law rule

that judges were immune from suit even if it could
be shown that they had been actuated by malice.
 Indian position
• The Judicial Officers Protection Act, 1850
• No judge, magistrate or person acting
judicially, whether or not within the limits of
his jurisdiction, can be suid, provided he, in
good faith, belief himself to have jurisdiction
to do the act.
• The Judges (Protection) Act, 1985
 Administrative acts

• ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION: CA 10

NOV 1947
• The applicant challenged the manner of decision making as to the conditions which
had been attached to its licence to open the cinema on Sundays. It had not been
allowed to admit children under 15 years of age. The statute provided no appeal
procedure, and the applicant sought a declaration that the conditions were ineffective. 

• Held: Parliament had given to the local authority a discretion as to the conditions for
the licence. That discretion might be exercised in different ways according to honestly
and reasonably held opinion. It was not the court’s job to substitute its own opinion for
that of the local authority.
• ‘the discretion must be exercised reasonably. Now what does that mean? a person
entrusted with a discretion must call his own attention to the matters which he is
bound to consider. He must exclude from his consideration matters which are
irrelevant to what he has to consider. If he does not obey those rules, he may truly be
said, and often is said, to be acting ‘unreasonably.
Indian Express Newspapers (Bombay) Private Ltd. v. Union of India

• This case concerns writ petitions challenging the levy of a duty on newsprint.
The petitioners contended that the duty led to an increase in cost of
newspapers and a drop in circulation, thereby adversely affecting freedom of
speech and expression.
• Reasonable limits have been outlined in Article 19(2) of the Indian
Constitution, wherein “public interest” is a ground that may be taken to
restrict freedom of expression.  
• The Court concluded that two basic principles must be borne in mind: first,
newspapers enjoy the benefits of government services like all other industries
and must accordingly contribute a reasonable share of government revenue
through taxation; and second, the burden of taxation must not be excessive
• The Supreme Court of India allowed the petitions and directed the government
to re-examine its taxation policy in light of the effect on freedom of the press
 ROWLING V TAKARO PROPERTIES LTD: PC 30 NOV 1988

• The minister had been called upon to consent to the issue of

shares to a foreign investor. The plaintiff said that the minister’s
negligent refusal of consent had led to the collapse of the project
and financial losses. 

• Held: On the facts, even if a duty of care was owed by the minister,
in this case he was not in breach of that duty
Criteria to impose liability in negligence are-
• Availability of judicial review to correct an error of law
• error of law is not a negligence
• Danger of inducing over-caution in civil servants and consequent
deley
 Parental and quasi-parental authority
• Children and Young persons Act, 1933 (moderate corporal
punishment to correct the behavior of a child is preserved)
• Rex v. Newport Justice, (1929)
• Education Act, 1996
• Indian position
• Section 89 and 90 IPC
• Juvenile Justice (Care and Protection of Children) Act, 2015
• Parents, guardians and schools teachers may face a maximum
of three years in jail for beating a child, or verbally abusing him
or inflicting any other form of corporal punishment. Similarly,
ragging a fresher or junior in college may also fetch in prison
 Statutory Authority

• If the legislature authorizes the doing of an act, no action can be

maintained on the ground that court can not treat that as a
wrong which the legislature has authorized. (damnum sine
injuira)
• No remedy for authorized act unless the legislature provides for
the compensation to them.
• Statutory authority extends not merely to the act authorized but
to all inevitable consequences of that act.
• Geddis V Proprietors of Bann Reservoir: HL 1878, no action will
lie for doing that which the legislature has authorized, if it be
done without negligence, although it does occasion damage to
anyone.’ 
• Absolute defense – there is no liability, whatsoever, on the authority-holder,
except for cases involving negligent acts.
• Vaughan v. Taff Valde Rail Co 1858
• The Railways have the authority to set up railway tracks, which may involve
clearing of pathways in use by private individuals, or lying close to inhabited
places where the constant noise of passing trains can be a disturbance.
• Conditional defense – the authority given rests on the condition that no harm
should be caused in exercise of that authority.
• Metropolitan Asylum District vs. Hill 1881
• In this case, the district granted a hospital fund the authority to build an asylum
for the treatment of smallpox. The people nearby were afraid that there might
be an outbreak of the disease in their immediate area and filed a case. The court
ruled that though the defendants had the authority to build the asylum, they
were duty bound to take care to keep it away from residential areas.
• MANCHESTER CORPORATION V. FARNWORTH: HL 1930
• plaintiff’s farm was destroyed by the poisnus fumes from electric power station
of defendant set-up under statutes. the house was asked as to the result in law
when a nuisance is the inevitable result of carrying out the functions authorized
by parliament. 
held: When Parliament has authorized a certain thing to be made or done in a
certain place, there can be no action for nuisance caused by the making or doing
of that thing if the nuisance is the inevitable result of the making or doing so
authorized.
The onus of proving that the result is inevitable is on those who wish to escape
liability for nuisance, but the criterion of inevitability is not what is theoretically
possible but what is possible according to the state of scientific knowledge at the
time, having also in view a certain common sense appreciation, which cannot be
rigidly defined, of practical feasibility in view of situation and of expense.’
 Allen v. gulf oil refining ltd. 1981
• An express statutory authority to construct an oil
refinery carried with it the authority to refine. It was
impossible to construct and operate the refinery
upon the site without creating a nuisance.
• ‘It is now well settled that where Parliament by
express direction or by necessary implication has
authorized the construction and use of an
undertaking or works, that carries with it an
authority to do what is authorized with immunity
from any action based on nuisance.
 Inevitable accident
• Charlesworth on Negligence, 4th Edn. describes an ‘inevitable accident’ as
follows:–
• “There is no inevitable accident unless the defendant can prove that
something happend over which he had no control and the effect of which
could not have been avoided by the exercise of care and skill.’
• What the court will look for is whether-
• The event was (or was not) outside your control,
• You had (or did not have) the scope to avoid the said event through
the exercise of reasonable care and caution (in this case it would include
having the car in proper condition which would allow you to stop it given a
reasonable amount of time, checking for oncoming vehicles/commuters);
and,
• You DID (or did not) exercise that reasonable care and caution to avoid the
said event/accident.
 Fardon v. Harcourt Rivington

Fact: The defendant and his wife went to a market. Leaving there
dog inside their car. After  sometime the dog become excited
broke the back glass. A broken glass went into the plaintiff’s eye
and then he lost his eye.
• Issue:
• Inevitable accident or not?
• Held- ‘If the possibility of danger emerging is reasonably
apparent, then to take no precautions is negligence; but if the
possibility of danger emerging is only a mere possibility which
would never occur to the mind of a reasonable man, then there
is no negligence in not having taken extraordinary precautions’.’ 
 Stanley v. Powell
• Fact: Powell, who was the member of a
shooting party, fired at a pheasant but the
pellet from his gun glanced off a tree and
accidentally wounded Stanley, another
member of the party. 
• Held-If the act is willful or negligent, the
defendant would be liable. And there is no
negligent.
 brown v. kendle 1859
• Two dogs began fighting and their owners attempted to separate
them. In an effort to do so, Defendant beat the dogs with a stick and
accidentally injured the Plaintiff in the process. Plaintiff brought suit
against the Defendant for assault and battery
• Held- The court reasoned that the defendant should only be liable if
he was at fault. Fault should be determined by whether or not the
defendant was acting with "ordinary care and prudence," a
formulation of the reasonable person standard.
• When a Defendant unintentionally injures another while undertaking a
lawful act, the Plaintiff must prove that the Defendant acted without
due care as adapted to the exigencies of the circumstances
• Now court only see whether there is negligence on the part of
defendant or not.
 Manindra Nath Mukherjee v. Mathuradas Chaturbhuj.(1946)

• Fact: In this case the defendant has tie a billboard for advertising. It
situated on the roof of the building and it was less permanent
structure. Once upon a time the billboard fall on the ground and
injured the head of plaintiff and then he sue for damages.
• Issue: It was act of god or not?
• The court held that the rainfall happens which was usually happened
in this area. It was defendant negligence that the defendant did not
tie the billboard properly and for this reason defendant held liable.
• It was not act of god, it was negligence of the defendant because he
did not tie the billboard properly.
 Necessity
• Three classes of cases to which the defence of
necessity applies
• Cases of public necessity (salus populi
suprema lex)
• Cases of private Necessity
• Where assistance is given to a third person
without his consent as a matter of necessity
 public necessity
• Public necessity, is when you’ve trespassed or damaged
someone’s property to prevent harm to the greater
community.
• Baender v Barnett, 255 US 224 (1921) a fire broke out in a
prison, and the prisoners, threatened by death, break out of
their cells.
• Held Surely they are not guilty of the crime of escape? Here’s
a situation where most of us would agree that necessity could
be a defense and that the prisoners who broke out of their
cells “out of necessity” ought not to be convicted for escape
• This defense is available when there is a situations of such
overwhelming urgency that a person must be allowed to
respond by breaking the law
 private Necessity
• Cope V Sharpe 1912
• A fire was caused in P's land. D servant tried to
extinguish the fire. He took necessary steps to set out
the fire and protect people from the fire. And he
trespass P’s land and P sued D for trespass. and he want
damages.
• Issue
• Was it necessary to trespass? Will he be liable or not?
• C was not liable for trespass. At that time it was
necessary to trespass that land for fire accident.
Where assistance is given to a third person without his consent as a matter of necessity

• Medical cases
• Preventing a people from committing suicide
etc.