DEFENCES

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GENERAL DEFENCES (JUSTIFICATIONS ) :

GENERAL DEFENCES (JUSTIFICATIONS ) Archana K. Assistant Professor, KSLU’s Law School, Dharwad

Introduction :

Introduction Justifications which refer only to a particular wrong or to a class of wrongs – special defenses Other justifications common to all kinds of wrongs - general defenses According to Sir Frederick Pollock- ‘rules of immunity which limits the rules of liability’ These are the conditions present which prevent an act from being regarded as wrongful Existence of such condition makes the act justified or excused

Act of the state:

Act of the state English law According to the common law of England- no member of the Executive can interfere with the liberty or property of a British subject; except he should support the legality of his action before the court of law Same principle applies to friendly alien resident in British territory When a person or property of the person, who is not a British subject and who is not residing in the British territory is injured by an act done by any representative of Her Majesty’s authority , civil or military, which is either previously sanctioned or subsequently ratified by Her Majesty, then the injured has no remedy for such an act – ACT of STATE

Cases…:

Cases… Buron V. Denman The defendant, captain in the Royal Navy, released the slaves and set fire to the slave barracoons of the plaintiff, a Spaniard on the west coast of Africa, outside British dominions. The defendant originally had no authority but subsequently his acts were ratified by the Crown. HELD- the plaintiff had no remedy against the defendant.

Slide 5:

Jhonstone V. Pedlar An Irishman, who became a naturalised American citizen came to Ireland and took in a rebellion and was deported. He again came to Ireland and was arrested for illegal drilling and money found on his person was confiscated. Inaction for wrongful detention of the money or in the alternative for damages the defendant raised the plea of act of the State. House of Lords denied the contention and held- at the time of confiscation of the money of the plaintiff, though American citizen, owed allegiance to Crown because of his residence in Ireland which conferred him local rights. Hence it was not considered as act of State

Indian law:

Indian law Same principles were applied before the Constitution of India After the Constitution it became the common law of India The Supreme Court states- “An act of State is not available against the citizen; it is a sovereign act which is neither grounded on law nor does it pretend to be so; it is catastrophic change constituting a new departure” Acts of State are directed against another sovereign state or its sovereign personally or its subjects and its based on policy considerations and not on law administered by municipal courts

Cases…:

Cases… Secretary of State for India in Council V. Kamachee Boye Saheba The Tajore Raj, was an independent state . Its properties were taken possession of by the East India Company on behalf of the Crown declaring that the Raj lapsed to the British government on the Raja dying issueless. Privy Council in this issue held that, it is an act of State and was not open to any challenge.

Supreme Court Rulings…:

Supreme Court Rulings… The integration of Indian States, its merger with the dominion of India and annexation of Goa, Daman and Diu by conquest gave rise to many cases in the post independence era. The Supreme Court in Dalmia Dadri Cement Co. Ltd. V. CIT made the following rulings- The taking over of the sovereign powers in respect of a new territory, be it a conquest, annexation or cession following upon a treaty is an act of State The taking over of the full sovereign powers may take number of years as a result of historical process; Sovereign power including the right to legislate for that territory may be acquired by a legislation in the nature of Foreign Jurisdiction Act without the territory merging itself in the new state; Rights of the residents of that territory against the territory comes to an end and the obligations of the old state do not pass on to the new state;

Continued…:

Continued … The rights which are recognised expressly or impliedly or conferred by the executive action or legislation can be enforced by the residents of that old state; The laws in force in that territory before annexation or cession continue until abrogated by the new state but this by itself does not give any right to the residents to enforce the right accrued under those laws; Right of the residents of that territory which are recognized or conferred by the new state after annexation or cession can not be abrogated by the new state by justifying the abrogation as the act of the state.

Judicial acts:

Judicial acts English law Judge No action lies for acts done or words spoken by a judge in the exercise of his judicial office Judges who are appointed to administer the law should be permitted to administer it under the protection of law independently and freely and without fear or favour This provision is not for the protection or benefit of malicious or corrupt judge but for the benefit of the public But for the acts done with bad faith and if that work is done with the knowledge that he is not having any power to do – liable for damages

Continued…:

Continued… If the act is non-judicial, no immunity arises from the fact that the doer holds the office of a judge, whether of a superior or of inferior court Under section 108 (2) of the Courts and Legal Services Act, 1990- bad faith must be proved for sustaining the liability for the acts done outside jurisdiction The term ‘without jurisdiction or excess of jurisdiction’ does not convey the meaning as conveyed in the writ of certiorari

Continued…:

Continued… The judge is liable to pay damages for excess of or without jurisdiction, in the following circumstances: When he has no jurisdiction to entertain the proceedings . Eg : no jurisdiction over the person, place or the subject matter, or; If he is guilty of irregularity of the procedure in the hearing of a case Eg : refuses to take the evidence of one party If the judge passes an order or sentence against the defendant without the proper foundation of law

Continued…:

Continued … Arbitrators They are the judges to whom the parties by consent have chosen to decide their dispute Not liable if they act honestly or for negligence in the discharge of their duties Liable for corruption Same immunity is also available to the Quasi- arbitrators Officers executing court orders In cases of excessive jurisdiction, they are not liable if he did not know that it was wrong The arrests made by him, or the seizure of goods of a person not mentioned in the warrant- protection is not available

Indian law:

Indian law Judicial Officers Protection Act, 1850 No judge, Magistrate, Justice of the Peace, Collector or other person acting judicially can be sued in any court for any act done by 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 the act complained of. No officer of any court or other person bound to execute the lawful warrants or orders of any Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially, can 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

Supreme Court Rulings…:

Supreme Court Rulings… In Anwar Hussain V. Ajay Kumar , the Supreme court made the following propositions: If 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; If such act 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 that he has jurisdiction to do that; The expression “jurisdiction” in section1 of the Act does not mean the power to do or order the act impugned but generally the authority of the judicial officer to act in the matter;

Continued…:

Continued… The Act protects the judicial officer only when he is acting in his judicial capacity and not in any other capacity; If a judicial officer arrests a person ‘ recklessly and maliciously’ not in discharge of the duties of his office as a Magistrate but on the ground that he acted under the direction of his superior officer, he can said to have acted in executive capacity and not in a judicial capacity and can not be protected under the Act

Continued…:

Continued … Judges (Protection) Act, 1985 For securing additional protection for judges and other officers acting judicially, this Act has been enacted Section 3 of the Act provides- ‘No court shall entertain or continue any civil or criminal proceeding against any person who is or was a judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function’.

Continued…:

Continued… The term judge is defined to mean- ‘ not only every person who is officially designated as a judge but also every person Who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment if not appealed against would be definitive, or a judgment which if confirmed by some other authority would be definitive; or Who is one of a body of a persons , which body of persons is empowered by law to give such a judgment as is referred in clause (a) This Act confers a wide protection to the judicial functions and official functions.

Continued…:

Continued… Gives immunity from the civil or criminal proceedings filed by a private person if he did that work in the course of acting or purporting to act in the discharge of his official or judicial duty or function The private person can move to the Supreme Court or High Court or the government to take suitable action against the judge section 3(2)

Executive acts:

Executive acts The executive government or the executive officers in India do not enjoy any protection except that conferred by the legislative enactments Not liable if the act done comes under- ‘act of state’ Liable for the torts committed by them or authorised by them Along with them state is also vicariously liable, if that act is done while discharging sovereign functions

GENERAL DEFENCES (JUSTIFICATIONS ) :

GENERAL DEFENCES (JUSTIFICATIONS ) Archana K. Assistant Professor, KSLU’s Law School, Dharwad

Judicial Acts:

Judicial Acts Indian law Judicial Officers Protection Act, 1850 No judge, Magistrate, Justice of the Peace, Collector or other person acting judicially can be sued in any court for any act done by 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 the act complained of. No officer of any court or other person bound to execute the lawful warrants or orders of any Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially, can 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

Supreme Court Rulings…:

Supreme Court Rulings… In Anwar Hussain V. Ajay Kumar , the Supreme court made the following propositions: If 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; If such act 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 that he has jurisdiction to do that; The expression “jurisdiction” in section1 of the Act does not mean the power to do or order the act impugned but generally the authority of the judicial officer to act in the matter;

Continued…:

Continued… The Act protects the judicial officer only when he is acting in his judicial capacity and not in any other capacity; If a judicial officer arrests a person ‘ recklessly and maliciously’ not in discharge of the duties of his office as a Magistrate but on the ground that he acted under the direction of his superior officer, he can said to have acted in executive capacity and not in a judicial capacity and can not be protected under the Act

Continued…:

Continued … Judges (Protection) Act, 1985 For securing additional protection for judges and other officers acting judicially, this Act has been enacted Section 3 of the Act provides- ‘No court shall entertain or continue any civil or criminal proceeding against any person who is or was a judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function’.

Continued…:

Continued… The term judge is defined to mean- ‘ not only every person who is officially designated as a judge but also every person Who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment if not appealed against would be definitive, or a judgment which if confirmed by some other authority would be definitive; or Who is one of a body of a persons , which body of persons is empowered by law to give such a judgment as is referred in clause (a) This Act confers a wide protection to the judicial functions and official functions.

Continued…:

Continued… Gives immunity from the civil or criminal proceedings filed by a private person if he did that work in the course of acting or purporting to act in the discharge of his official or judicial duty or function The private person can move to the Supreme Court or High Court or the government to take suitable action against the judge section 3(2)

Executive acts:

Executive acts The executive government or the executive officers in India do not enjoy any protection except that conferred by the legislative enactments Not liable if the act done comes under- ‘act of state’ Liable for the torts committed by them or authorised by them Along with them state is also vicariously liable, if that act is done while discharging sovereign functions

Administrative acts:

Administrative acts The administrative bodies or authorities required to deal with the matters of their jurisdiction in an administrative manner- administrative decisions To reach their decisions, they take in to consideration the questions of policy They have to act fairly and objectively Has to follow natural justice principle The decisions of administrative bodies are clearly distinct for the decisions of judicial body Administrative bodies do not get protection under- the Judicial Officers Protection Act; or Judges (Protection) Act

Continued…:

Continued… The authority must- Act in good faith for the purpose for which the power is conferred Take in to account the matters relevant for the exercise of the power It should not- Be influenced by irrelevant matters Proceed on a misrepresentation of the statute or law conferring the power and thereby asking a wrong question

Slide 32:

If any of these grounds are present, the order of the administrative body can be challenged before the High Court (Art. 226) or Supreme court (Art.32) in a suit Mere invalidity of the order does not make the authority to pay compensation in an action in tort Authority can be held liable, If the act is motivated by malice; or For the tort of negligence, if negligence is established; or for wrongful arrest and imprisonment if the void act leads to the commission of tort

Slide 33:

But liability in negligence does not arise, if- Availability of judicial review to correct an error of law, The fact that an error of law or misconstruction of a statute will only rarely amount to negligence; The danger of inducing over caution in civil servants and consequent delay; Difficulty of identifying a particular case in which the authority is under a duty to seek legal advice

Acts of Governing Body:

Acts of Governing Body Expulsion of a member from the club, association or professional organisation , when the governing body acts in bad faith; or in breach of the rules of natural justice- claim can be made for damages for breach of contract not tort but if the rules were observed by the authority and the authority acted in good faith –no legal right of redress is available

Parental and Quasi Parental Authority:

Parental and Quasi Parental Authority Parents or persons in loco parentis may, for the purpose of correcting what is evil in the child , inflict moderate and reasonable corporal punishment Right given under(English) Children and Young Persons Act 1933 Old view- Authority of a school master during the school hours was the same as that of the parents. A parent when he places his child with a school master, delegates him all authority , so far as it is necessary for the welfare of the child. Master can inflict moderate and reasonable corporal punishment on his pupil

Continued..:

Continued.. Modern view- The schoolmaster has his own independent authority to act for the welfare of the child. This authority is not limited to offences committed by the pupil upon the premises of the school May extend to acts done by the pupil while on the way to and from the school Rex V. Newport ( salop ) Justices Wright, At a school there was a rule prohibiting smoking by pupils whether in the school or in the public. A pupil after returning home smoked a cigarette in a public street and the next day the school master administered to him five strokes with a cane. Held - father of the boy by sending him to the school authorised the schoolmaster to administer reasonable punishment to the boy for breach of a school rule and the punishment was reasonable

Authority of Necessity:

Authority of Necessity The master of a vessel on the high seas or in a foreign port has disciplinary powers not only over the crew but over the passengers also Powers are based on necessity and limited to the preservation of necessary discipline and safety of the ship The commander of an aircraft has similar powers

Statutory Authority:

Statutory Authority For the acts of statutory authority or legislative authorities, no action can be maintained on the ground that no court can treat that as a wrong which the court has authorised The person who has sustained a loss by the doing of an act authorised is without any remedy It amounts to damnum sine injuria Principle- act is not wrongful not because it is for public purpose but because it is authorised by the legislature Philosophy behind the statutory immunity- lesser private right must yield to greater public interest The authority extends to all inevitable consequences of the act done

Slide 39:

Powers conferred by the legislature should be exercised with judgment and caution Statute may give absolute or conditional liability Absolute liability: When a statute specially authorises the doing of an act (which would otherwise be a wrong), no action can be maintained for that act even if it causes injury to anyone; The person injured is without any remedy except so far as the legislature has provided that compensation An action will lie if the acts be done negligently

Slide 40:

The burden of proving such absolute liability to do acts which would otherwise be a nuisance at common law lies on the person who seeks the protection of statutory authority Metropolitan Asylum Dt. Board V. Hill Metropolitan Asylum Dt. Board were authorised to purchase the lands and erect buildings to be used as hospitals. But the Act did not imperatively order these things to be done. The Board erected small pox hospital which became a nuisance to the owners of the neighbouring lands. Held- Board could not set up the statute as a defence. The statute was constructed to mean that, a smallpox hospital might be built and maintained if it could be done without creating a nuisance

Continued…:

Continued … Conditional authority: When a statute merely permits a thing to be done, the authority is said to be conditional Is a discretionary power to do a thing with choice of time and places The discretion must be exercised in strict conformity with private rights and an action lies if it is done in such a manner as to cause injury Authority to do the act provided it can be done without causing a nuisance

Inevitable Accident:

Inevitable Accident This is a defence that can be claimed under a situation where in spite of taking reasonable care and protection the harm could not be averted. This does not mean absolutely inevitable but unavoidable even after taking necessary precautions with respect to the harm in question. Accident which could not possibly be prevented by the exercise of ordinary care, caution and skill. Not absolutely inevitable but, not avoidable by such precaution as a reasonable man doing such an act then and there could be expected to take No action lies from any injury resulting there from

English law:

English law A man must answer for all direct consequences of his voluntary act, in whatever manner they happened, prevailed – was the earlier view in England In the interest of ordinary intercourse of life, people must bear the incidents of acts by others which could not have been avoided by the latter with due diligence- present trend Negligent acts are not free from liability In determining whether a given act is negligent act or not, regard must be had to its necessity and propriety, common usage and peculiarities of the circumstances as a whole

LEADING CASES…:

LEADING CASES…

Injury By Runaway Horses:

Injury By Runaway Horses Holmes V. Mather the defendant’s horses while being driven by his servant on public highway ran away by barking of a dog and became so unmanageable that the servant could not stop them, but tried to guide them as best as he could do. At last he failed to get them clear round the corner and they knocked down the plaintiff who was on the highway. Held- the defendant was not liable for the servant had done his best under the circumstances. The accident was not due to any wrongful act or omission of the defendant or his servant

Damage by explosive substance:

Damage by explosive substance Nitroglycerine case The defendants a firm of carriers, received a wooden case at New York to be carried to California. However they were not informed about the contents of the case. It contained nitroglycerine, a dangerous explosive. As the box was leaking, it was taken to the office of the defendant for examination. While the wooden case being opened the nitroglycerine exploded, damaging the building belonging to the plaintiff and killing all persons present. In an action by the landlord the court held- defendants were not liable for the accident caused by the accident. It was purely inevitable.

Injury to eye:

Injury to eye The plaintiff’s and defendant’s dogs were fighting. The defendant was beating them in order to separate them and the plaintiff was looking on. The defendant accidentally hit the plaintiff’s eye, causing him a severe injury. Held- The action of a defendant was a lawful and proper act in itself , which he might do by proper and safe means. In doing this act he accidentally hit the plaintiff in the eye and wounded him. It was a result of pure accident and therefore no action would lie

Inevitable Mistake :

Inevitable Mistake If a person was under mistaken knowledge usually and even after taking reasonable precautions could not have been reasonably expected to not commit the so called ‘mistake’. Ex: Mr. A runs an auction shop on the beaches of Goa. Mr. B is a Nepalese entrepreneur who asks his friend A to auction off some ill gotten goods that the former has smuggled in from Nepal. A did all the usual checks on the goods and was reasonably confident that the goods were genuine. He auctioned off the goods and then the anomaly was detected and the new owners sued A. Herein he can claim the defence of ‘mistake’. This is not a very often claimed defence as it is very hard to fit in a case into the subtle limits of this defence of ‘mistake’.

Vis Major or Act of God. :

Vis Major or Act of God. Those inevitable accidents which are occasioned by the elementary forces of nature unconnected with the agency of man or other causes- Vis Major or Act of God When something occurs over which you have no control and it is effected of accentuated by the forces of nature –no action lies in tort law for such inadvertent damage If the person was well aware of the risks and could have possibly taken steps to stop the wrongful act or damaging act or have in anyway mitigated it then he cannot duck responsibility under this defence. Vis major is a direct, violent, sudden and irresistible act of nature as could not by any amount of foresight, have been foreseen or if foreseen could not by any amount of human care and skill have been resisted. Ex: storm, lightening, earthquake etc,.

Continued..:

Continued .. Constituents of this defence: The accident is due to forces of nature or unnatural circumstances. No control over it and it happened suddenly. No knowledge or could not do anything to mitigate the damage. Nicholas V. Marshland The defendant had a series of artificial lakes on his own land, in the construction and maintenance, there had been no negligence. Owing to a most unusual fall of rain, some of the reservoirs burst and carried away four country bridges. Held- the defendant was not liable in as much as the water escaped by the act of God

Leave and Licence -Volenti non fit injuria. :

Leave and Licence -Volenti non fit injuria. Harm suffered voluntarily does not constitute a legal injury Principle embodied in the maxim, Volenti non fit injuria , means- where the sufferer is willing no injury is done If one voluntarily takes the risk of something then he may not claim a suit of action of such risk leads to injury. The risk must have been taken under free consent and not under coercion and with the full knowledge of the risk. A corollary of this principle is Scienti non fit injuria which means that only knowledge of the risk is not enough to claim defence there must be acceptance to undergo the resultants of the risk undertaken. There had to be consent and mere knowledge is not sufficient.

Consent:

Consent Consent is an act of human will acquiescing in a mental judgment or deciding to implement it Consent to suffer harm is a defence in certain circumstances The applicability of the maxim requires two things: Plaintiff had the knowledge of risk; Knowing fully well about it he volunteered himself to bear. Consent may be express or implied Express consent: When a person invites other persons enter in to his premises or allows others to take his goods or submits to a Surgical Operation or medical treatment, or Participates in Games, the consent is express. The principle protects the surgeon who amputates the limbs, the foot ball player, boxer or fencer as long as they play fairly according to the rules of the game.

Implied consent:

Implied consent “Action often speaks louder than words”- John Fleming

Necessity :

Necessity Under dire conditions if one does something which results in a tort then once can usually claim the defence of necessity. Such condition should however be able to come under the bracket of ‘general good’ or ‘greater good’ (there little Harry Potter for you!!!) and to prevent a bigger harm. Anindita and Sanya are nighbours . Sanya’s house was on fire so she trespassed onto Anindita’s property to draw water from the latter’s well to douse the fire (prevent a greater harm). Thus she is covered under the defence of necessity.

Slide 56:

Private Defence Nothing is wrong if done with regard to protecting one’s own self, another self, one’s property or another’s property against a threat to such. Suppose Someone points a loaded gun at me and threatens me I do have the right to bodily harm that person in order to save myself or someone else. However there are limitations to such rule with regard to the force being used which must be proportional to the risk presented. Points to remember about private defence: Risk must be immediate and sudden. Force used must be proportionate to the risk at hand

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