General exceptions

or
defences to liability in torts
or
Justification in tort
• What are the general defences available in cases
of tortious liability? Explain .
or
• Enumerate and examine the general defences to
an action in tort.

• “Harm suffered voluntarily does not constitute

a legal injury and is not actionable.” – examine
the scope of this rule.
or
• “One who agrees to suffer the risk, has no
remedy for that in tort” – explain with
exceptions.
• Under certain conditions the act is said to be justified or
excused.
• The defendant can take certain defences to remove his
liability in tort cases.
General defences or exceptions or justifications
1. consent or leave or license (volenti non fit injuria)
2. Act of God
3. Inevitable accident
4. Private defence
5. Acts causing slight harm
6. Statutory authority
7. Parental and quasi-parental authority
8. Act of state
9. Judicial or quasi-judicial acts
 Consent or leave or licence
Volenti non fit injuria
• Harm suffered voluntarily does not constitute a legal
injury and therefore, is not actionable.
• Where the suffer is willing, no injury is done.
• This maxim is based on the principle of common sense.
• If a person himself invites a danger and injury is caused
to him, nobody shall be responsible for such injury.
• Plaintiff’s consent serves as a good defence to the
defender.
• No man can enforce a right which he has voluntarily
waived or abandoned.
• The consent to suffer the harm may be express or
implied.
Express consent:
• Giving a consent through spoken word/stated or acted consent.
• e.g. invitation to somebody
implied consent:
• consent will be implied where it is not plainly expressed. But the
fact or result is known to everyone.
• consent of a player in a lawful game. E.g. cricket, football,
hockey, rugby or boxing.
• But if the assault is wilful- not incidental to the game, then it is
actionable.
For the application of this maxim – the defendant must prove
some conditions/essentials.
1. consent must be freely given
2. Consent cannot be given to an illegal act
3. Knowledge of risk is not the same thing as consent to run
the risk. (mere knowledge of risk is no consent)
1. Const must be freely given
• The consent is not free, if the consent has been obtained by undue influence,
fraud, misrepresentation, mistake or the like elements – which adversely affect
a free consent.
Imperial Chemical Industries Ltd. V. Shatwell
• Shatwell and his brother (James) were working in the quarry of the appellant.
• Plaintiff and brother tried to test some detonators without taking requisite
precautions.
• Usually that testing must be done from a shelter. But Brothers carried out a test in
the open place. There is a statutory provisions for using and testing of detonators.
Even employer instructed that detonators must be tested from a shelter.
• Brothers carried out a test in the open. As a result an explosion occurred – both
were injured.
• Case filed based on their employer's vicarious liability for the negligence and
breach of statutory duty of the other worker (Brother)
• The House of Lords granted the defence of volenti non fit injuria
• The court observed that – both brothers were expert in using of that detonators.
Both of them freely and voluntarily assumed the risk involved in that work. There
was no pressure from any other source against them.
• Court observed that the defence of volenti non fit injuria will apply when there is
true and free consent to the risk.
Consent obtained by fraud – Hegarty v. Shine
• The court held that – consent obtained by fraud is not real and that does not
serve as a good defence.
Consent obtained under compulsion
Bowater v. Rowley Regis Corporation
• The King’s Bench held that – consent given under circumstances when the
person does not have freedom of choice is not the proper consent.
• The servant in a situation either accepting the risky work or losing the job.
Burnett v. British Waterways Board
• The plaintiff was employed by the defendant on a barge, and plaintiff
received injuries owing to the breaking of a defective rope by which the
barge was being pulled.
• It was held that there was no implied consent to bear the risk on the part
of the plaintiff as he had no knowledge of the defective rope.
• Similarly, the plaintiff cannot be prevented from recovering damages, where
he takes the risk without having full knowledge of the faulty conditions of a
White v. Blackmore
• The plaintiff’s husband paid for admission of his family for
witnessing a car race. During the race a car got entangled in
the safety rope and the plaintiff was catapulted some 20 feet
and died consequently.
• It was held that since the deceased did not have full
knowledge of the risk he was running from the faulty lay
out of the ropes, he did not willingly accept the risk.

In cases of game or competition, implied consent of spectator is

generally presumed, provided the game is played according to
the prescribed rules and players must be competent.
Woolridge v. Summer
• Plaintiff, a photographer at a horse race, was injured by a
galloping horse.
• It was held that he could not recover compensation.
2. Consent cannot be given to an illegal act:
• No consent can legalise an unlawful act or an act which
is prohibited by law and when the tort, is of such a
character as to amount to a crime.
R. v. Donovan
• fighting with deadly sharp swords are unlawful, and
even though the parties may have consented, yet the
law will permit an action at the instance of the plaintiff.
3.knowledge of risk is not the same thing as consent to
run the risk.
• Volenti non fit injuria is a defence.
• But Scienti non fit injuria – knowledge of danger does
not necessarily imply a consent to bear that danger.
Mere knowledge as to the risk of danger is no consent.
Smith v. Baker
• The plaintiff worked in a cutting on the top of which a
crane carrying heavy stone over his head while he was
drilling the rock face in the cutting.
• Both he and employers knew that there was a risk of stones
falling, but no warning was given to him of the moment at
which any particular jibbing commenced.
• A stone from the crane fell upon him and injured.
• The house of lords held defendants were liable.

Thus, for the maxim volenti non fit injuria to apply two things
are necessary:
a. knowledge that risk is there.
b. voluntary acceptance of the risk.
Exceptions or limitations:
• The defence of volenti non fit injuria does not apply in some cases:
1.consent under compulsion or fraud
• Consent from plaintiff by fraud, misrepresentation, coercion or undue
influence .
2.negligence of the defendant
• The defence does not extend to the acts done negligently by the defendant.
• e.g. the surgeon cannot plead the defence, if he performs the operation
negligently.

3.rescue cases
• Volenti non fit injuria is not applicable in rescue cases.
• Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent
danger of personal injury or death, the defence of leave or licence is not
applicable to the plaintiff, whether the person endangered was one to
whom he owed a duty of protection as a member of his family, or was a
mere stranger to whom he owed no such duty.
Dann v. Hamilton
• The plaintiff knew fully well that the driver of motor car
was drunk and hence the chances of accident were great,
yet she chose to travel by that car and engaged the
driver.
• She was injured in an accident caused by the
drunkenness of the driver, in which the driver was killed.
• In an action against personal representatives of the driver,
the defendants raised the plea of volenti non fit injuria.
• But it was held that the drunkenness of the driver
proved the he was negligent, and the maxim did not
apply to the tort of negligence and the plaintiff was
entitled to recover.
Brandon v. Osborne Garett and Co.
• The plaintiff and her husband were customers in a
shop in which glass in a sky light of the roof was
broken owing to the negligence of the contractor
who built it.
• The glass fell on the plaintiff’s husband and injured
him.
• The plaintiff, in trying to save her husband, twist the
ligament her leg in such a way as to bring about a
recurrence of blood clotting.
• In an action to recover damages from the contractors it
was held that the wife was also entitled to damage,
and her conduct in the circumstances perfectly
natural and instinctive.
Haynes v. Harwood
• The defendant negligently left his horses
unattended in a crowded street.
• A mischievous boy threw a stone at them and
it started running uncontrollably.
• The plaintiff, constable on duty, perceiving the
danger to the lives of the persons, ran out and
stopped the horses but was seriously injured.
• It was held in the circumstances that he was
entitled to recover damages, as the defendant
was grossly negligent, and that the defences of
volenti non fit injuria was not apply to the
rescue cases.
 Act of god or vis major or damnum fatale
• act of god – an act of nature, independent of human
intervention, which cannot be foreseen by any amount
of human ability and skill, and if foreseen, it cannot be
prevented by any means of human care and skill.
• Damages or loss arising out of the working of natural
forces- exceptionally heavy rainfall, storms, tides, flash
of lightening, flood, earthquake, volcanic eruptions.
• But every loss caused due to rain or falling of tree are not
the examples of act of god.
Essential conditions to plead defence of act of god:
1. there must be working of natural forces without any
intervention from human being.
2. the occurrence must be extraordinary
Nichols v. Marsland
• The defendant constructed 3 artificial lakes which were fed by a
natural stream. The lakes were well constructed and adequate in all
normal circumstances.
• However, they were destroyed by a very heavy rainfall of quite
exceptional violence, with the result that the plaintiff’s bridges were
damaged.
• It was held that the defendant was not negligence and the accident
was due to an act of god.
Blyth v. Birmingham Water Works Co.
• A main pipe was laid down by the defendant Water Co. All the
directions contained in the statute, authorising the company to lay
down the pipes, were followed.
• But by a severe frost the pipe got burst and water escaped from
the pipe and as a result damage was caused to the plaintiff’s
property.
• The consequence was held to be the act of god.
• Whether a particular circumstance or occurrence
amount to an act of god is a question of fact in each
case.
• The criterion for deciding it is ‘no human foresight
and prudence could reasonably recognise the
possibility of such an event.
The criteria for the application of act of god – it
should be happened due to act of nature.
• That incident must be occurred independent of
human intervention.
• And which cannot be foreseen by any amount of
human ability and skill and if it foreseen, it cannot
be prevented by any means of human care and skill.
 Over a period of time –there is a tendency on the part of
courts to limit the application of the defence of act of
god. Because of scientific advancement – sometimes it
can be predictable.
Greenock Corporation v. Caledonian Rly.
• Corporation constructed a concrete padding pool for
children in the bed of a stream.
• But pool constructed by altering its course and
obstructing the natural flow of water.
• Due to extraordinary rainfall the stream overflowed
at the pond and flowing through a public street caused
flood in the town. As a consequence plaintiff’s
property was damaged.
• It was held by the House of Lords that the rainfall was
Kullulal v. Hemchand
• The defendant constructed a building – building
collapsed – as a result of building collapse 2 sons
of plaintiff were dead.
• Before the day the building collapsed, there was a
2.66 inches rain.
• The defendant pleaded that rain as an act of god.
• M.P. High Court held that – the act of god must be
apparent on the face of the records. They must
be known and affect largely to entire public.
• For every small incident, the defendant cannot
take the defence of act of god.
• Finally, the court made defendant liable.
Ramalinga v. Narayana Reddiar
• The Kerala High Court held that – the criminal
activities of the unruly mod, which robbed the
goods transported in the defendant’s lorry, cannot
be considered to be an act of god.
• Defendant is liable for the loss of those goods as a
common carrier.
Saraswati Parabhai v. Grid Corporation of Orissa
• 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.
 Inevitable accident
• Accident means – sudden occurrence of an event resulting in evil
consequences.
• Accident means an unexpected injury and if the same could not have
been foreseen and avoided, in spite of reasonable care on the part
of the defendant, it is inevitable accident.
• An inevitable accident is that which could not possibly, be prevented
by the exercise of ordinary care, caution and skill.
• To claim this defence the defendant must show that he neither
intended to injure the plaintiff, nor could he avoid the injury by
taking reasonable care.
• Highest degree of caution is not required.
• To plead the defence of inevitable accident the plaintiff has to
establish that –
-the event is unforeseeable and
-the consequences are unavoidable in spite of reasonable precautions.
Limitations:
The defence of inevitable accident not available in the cases of-
1. Trespass
2. Negligence
3. Vicarious liability
4. Absolute liability

Stanley v. Powell
• Plaintiff and defendants are the members of a shooting party.
Both of them went for pheasant shooting.
• The defendant fired at a pheasant. But the gun was
wrongfully fired. a pellet from his gun glanced off a tree at
an angle and injured the plaintiff.
• The Queens Bench held that – injury was accidental and the
defendant was not liable. This a case of inevitable accident.
Brown v. Kendal
• 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. While trying to
separate them, the defendant accidently hit the
plaintiff’s eye.
• The court observed that – the defendant act itself is
lawful and proper act. He just trying to separate the
dogs and he doesn’t have any intention to cause
injury to the plaintiff. He taken due care and proper
precautions.
• He raised the stick to separate the dogs and hit the
plaintiff’s eye accidently and wounded him.
• The court held that this was the result of pure accident.
Padmavati v. Dugganaika
• Two strangers took lift in a jeep. Shortly
afterwards- because of Axle bolt loose jeep met
with an accident and the jeep was toppled.
• Strangers got seriously injured and one of
them was died in the hospital.
• The court held that – it was found that it was a
case of sheer accident and there was no
evidence that the defendant was negligent in
take care of the vehicle.
• The court held that – the defendants were held
not liable.
 Distinction between act of god and inevitable accident

Act of god inevitable accident

• It occurs without intervention • it occurs with intervention of
of human agency human agency

• It cannot be prevented despite • it can be prevented by

utmost care and caution necessary care and precaution

• It is predictable, but cannot • it is not predictable, but can

be preventable be preventable.
e.g. Storms. e.g. building collapse, train
accident etc.
 Necessity
• Necessity knows no law – is a common saying.
• Means – if the circumstances are need for the immediate action, then
it is not necessary that the law should be strictly followed.
• necessity justifies an act which would otherwise be wrongful.
• An act causing damage, if done under necessity to prevent a greater
evil is not actionable even though harm was caused intentionally.
• This exception of necessity is founded on the maxim- salus populi
suprema lex – the welfare of the people is the supreme law.
• The basis of this defence is a mixture of charity , the maintenance of
public good and self protection.
e.g. – pulling down a house on fire to prevent spread of fire to others
property. (Saltpetre case)
- Throwing goods/cargo over board to lighten a boat in a storm
(Mouse’s case)
- Demolishing a building which has become dangers
- Medical assistance or operation without the consent of the patient
• The defendant cannot plead this defence if there is negligence on
his part.
• if the interference is not reasonably necessary, the defendant
will be liable.
Carter v. Thomas
• Fire accident occurred in a plaintiff’s premises. Then, the
firemen rushed to the spot with all appliances and were
trying to extinguish it. the defendant had also entered the
plaintiff’s premises with good faith. But the plaintiff objected.
• But the defendant did not obey/follow the words of the
plaintiff and helped the firemen in extinguishing the fire.
• Then the plaintiff sued the defendant for trespass.
• The court held that – the defendant was liable for the trespass
as his interference was not necessary.
• This defence available to the defendant – if the act complained
of was reasonably demanded by the danger or emergency.
 Private Defence
• The law permits use of reasonable force to protect himself or
family members or his property.
• To use force - There must be imminent threat to the personal
safety or his property.
• The use of force in exercise of self defence must be reasonable
and proportionate.
• The force used should not be excessive.
• What force is necessary depends on the circumstances of each
case.
• e.g. it is not justifiable to use deadly weapon to repel a push or
blow with the land.
• To plead the defence of private defence honest and reasonable
belief of ‘immediate danger’ is the test.
• No justification to use of force for - future attack or after the
attack is already over.
Bird v. Holbrook
• The defendant had put up automatic spring gun in his garden for
safety and protection.
• But he fixed the spring gun without any notice/warning board
• When the plaintiff enter the garden, the spring gun automatically
discharged and plaintiff was injured.
• The court held that – the force used here was greater than the
occasion demanded and the defendant not fix any warning board
regarding the automatic spring gun. Hence, the plaintiff was
entitled to recover compensation from defendant.
Morris v. Nugent
• Where the defendant was passing by the plaintiff’s house, and the
plaintiff’s dog ran out and bit the defendant’s gaiter and on the
defendant 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, the dog must be actually
Ramanju Mudali v. M . Gangan
• The defendant/land owner laid down some live electric wire on his land to
protect his land.
• Plaintiff while crossing the defendant land at night 10 p.m. in order to
reach his own land, he received electric shock and sustained injuries.
• The Madras High court held that the defendant had given no visible warning
about such live electric wire and the force used here was greater than the
occasion demanded.

Private defence – under IPC – ss.96-106

• IPC extends the benefits of this defence even in case of causing death in
certain circumstances.
• e.g. section 100- apprehension of death, grievous hurt, intention of
committing rape, kidnapping or abducting, wrongfully confining a person,
throwing or administering acid,
• sec 103 – robbery, house breaking by night, mischief fire, theft, house trespass
Devendra Bhai v. Megha Bhai
• Orissa High Court held that – the principle of private defence extends not
only to the right of person to protect himself but also to protect other’s
 Acts Causing Slight Harm
• Generally the courts do not take trifling
(petty/minor/insignificant/unimportant issues)
• This defence is based on the maxim – de minimis no curat lex –
the law does not take account of trifles.
• e.g. X is driving in dusty road at a good speed. His car’s wheels
throw a little dust on the cloths of Y – a pedestrian. X is not
liable for tort.
• X walks on through the Y’s land, without Y’s permission, only
for the 1st time, without causing damage to the land of Y. 1 st time
it is trivial matter. The maxim would protect him, but if X repeats
again and again to establish his right of way upon the Y’s land
then it does not remain a trivial matter and it becomes a tort.
• This principle is also recognised in the IPC – Sec.95
• But this maxim does not apply where there is an injury to a legal
right.
 Statutory authority
• Means- power or authority given by law / empowering to do an act.
• 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 in that – the lesser
private right must give way to the greater public interest.
• If the defendant commits the tort under the statutory authority – it is
complete defence.
• The injured party has no remedy except for claiming such as
compensation provided by the statute.
• Statutory authority may be absolute or conditional.
• Absolute statutory authority – confers immunity not only in respect of
act itself, but all the necessary consequences of the act.
• e.g. it is necessary to acquire land for the laying down of the railway
track. The plaintiff cannot have any cause of action except claiming
compensation as provided under the statute. (Land Acquisition law)
• Similarly, no action can be instituted for the harm caused as a result of
noise, vibration, smoke, and sparks by running trains. (incidental harm)
• Public interest is greater than interest of the private individuals.
Hammer Smith Rail Co. v. Brand
• The value of the plaintiff’s property had considerably depreciated
due to the noise, vibration and smoke caused by the running of
trains.
• Court held that – the damage being necessarily incidental to the
running of the trains, that is authorised by the statutes.

• But, the defence of statutory authority cannot be pleaded when there

is negligence on the part of the defendant. (act as per the prescribed
rules and regulations)
Smith v. London & South Western Railways Co.
• The servants of the Railway Co. negligently left trimmings of grass
and hedges near a railway line.
• Spark from an engine set the materials on fire.
• By a heavy wind, the fire was carried to the plaintiff’s cottage, 200
yards away from the railway line. The cottage was burnt.
• The court held that – it was a case of negligence on the part of the
Conditional statutory authority –
• Authority to do the act provided it can be done without causing
nuisance or other injury.
• The statute may fix some conditions to exercise the statutory
authority.
• The conditions must be followed.
Metropolitan Asylum District Board v. Hill
• The statute authorised the District Board to construct a small-
pox hospital.
• Statute fix the condition – hospital should not set up in
residential area (reason is that – the small pox may spread to
residents of the area).
• But, District Board set up the hospital in residential area.
• The residents of that area filed a case against the Board to issue
the injunction order against this nuisance.
• Court held that – it was a nuisance and court issued injunction
 Parental or Quasi-parental Authority
• The acts of parents for correcting their children are
not subject to any liability in tort.
• No suit for assault or battery or wrongful
confinement can be instituted against them.
• The exercise of force or restraint for the purpose of
correction, chastisement of training, whether it be
towards the child by its parents, or towards the
pupil by the school master or towards the lunatic by
his custodian – gives no cause of action.
• But it should be done reasonably, and good
intention and within moderate limits.
• e.g. the parents can confine their children for their
bright future to abandon bad company.
• Quasi- parental authority: the teachers or the masters
of the disciplinary authorities for the purpose of
correcting the children – to mould them as good
citizens.
• But their parents consent is necessary.
Rex v. Newport
• a school master caned(punished) a student who had,
contrary to the school regulation, been smoking in the
street during the time after having returned home.
• It was held that father of the boy sending him to the
school authorised the school master to administer
reasonable punishment to the boy for breach of school
rule, and that punishment administered was
reasonable.
 Acts of state
• Act of state is an act done in exercise of sovereign power in
relation to another state or subjects of another state which
cannot be questioned by municipal courts.
• An act of state is outside the ordinary law
• An act of state is an act which the king executes in the exercise
of his absolute and extraordinary power.
• It is essentially an exercise of sovereign power as a matter of
policy or political convenience/advantage.
• Acts done by rulers in exercise of political power to the people
of another state are acts of state and therefore, they are
exempted from liability.
Salient features of an act of state:
• The act is done by the representatives of a state. (it may be
civil or military force)
• The act is injurious to some other state or its subjects
Buron v. Denman
• Denman/defendant - captain in the British/Royal Navy.
• Buron (Spanish subject)–owner of the slaves
• Slaves were kept in the barracoons, which was situated on the West
Coast of Africa, outside British Dominions.
• Denmon released the slaves from the barraccons and set fire to the
barracoons of the plaintiff.
• The conduct of the captain is not previously approved by the
secretary of state. But, his act was ratified by the Crown and granted
him an award of 4000 pounds.
• The court held that – the defendant had no authority to do that
act, but his act was ratified by the government. As the effect of
the ratification of captain’s act was to convert what he had done
into an act of state and for the act of state the defendant was not
liable.
• The term act of state applies to aliens only and not to British
subject.
• According to British jurisprudence – the executive cannot interfere
with the liberty or property of a British subject, except on the
condition that he can support the legality of his action before a
court of justice.
• In India :Article 21
Secretary of State for India in Council v. Kamachee Boye Saheba (1859)
• Tanjore Raj – independent State as per the treaty between Maharaj and
East India Co.
• The Raja of Tanjore died without any male child.
• British government declared that due to the death of king, the Tanjore
lapsed independent status.
• King’s wife Kamachee Boye Saheba – filed case against the Secretary
of State for the recovery of their state.
• The Privy Council held that – this was an act of state and it was not
open to any challenge.
• It was held that recognition of any state as independent or is the
sovereign function/act of state and cannot challenge in any court of
law.
State of Saurastra v. Memon Haji Ismail
• In 1941 – the Nawab of Junagadh gifted some property to Abu Panch .
• Abu Panch sold the same property to the Haji Ismail for Rs. 30,000/-
• After independence Act, 1947 – Junagadh became sovereign state- Nawab
went to Pakistan.
• Nawab’s Council – requested the Govt. Of India to take over the
administration of Junagadh – at the request of Nawab’s Council the
government taken over the administration of Junagadh – government
appointed the Administrator.
• Referendum was held in 1948
• The people voted in favour of the accession of the state to India.
• The Administrator passed an order declaring the gift of property by
Nawab to Abu Panch, and subsequent sale to Haji Ismail as invalid.
• SC held that – as there was no formal annexation of the state by the
dominion of India. The citizen of the state did not become the citizen of
the dominion.
• The Haji Ismail is the citizen of the Junagadh state and he was not the
citizen of the dominion of India. So, the action of the dominion
government was held to be an act of state and not justiciable in the
In Re, Maharaja Madhava Singh (1905)
• The Privy Council held that - An order of the
Governor General in Council –
deposing/remove from office suddenly and
forcefully the Ruler of an Indian State was an
act of State and its validity was not open to
question in a court of law.
Cook v. Spigg (1915)
• The Privy Council ruled that – the acquisition of
territory belonging to another state, whatever
be the mode of acquisition (war/treaty) – is an
act of state and acquisition of land cannot be
questioned in any court of law.
H.H. Maharajadhiraja Madhav Rao Jivaji Rao
Scindia v. Union of India (1971)
• SC – held that – act of state is not available
against a citizen and state cannot act outside
the ordinary law even in war or peace time.
• There is legal remedy for its wrongful acts
against its own subject or even a friendly alien
within the state.
• Government decisions are open to judicial
scrutiny and their authority, validity and
correctness can be examined by courts.
 Judicial and 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.
• This rule of judicial immunity is founded on the principle of
public benefit that – judges should be at liberty to exercise
their function independently and without fear of
consequences.
• The law exempts judicial officers/judges from tortious
liability for any act in the exercise of their judicial capacity.
• The remedy for judicial errors in some form of appeal to
higher court and the remedy for judicial corruption is
criminal prosecution or removal of the judge.
• The same immunities have been extended to quasi-judicial
authorities
• Judicial authorities must follow the principles of natural
justice (rule against bias and rule of fair hearing)
Sirros v. Moore
• Lord Denning – ruled that ‘Every judge in England,
irrespective of rank and including the lay magistracy is
protected from liability in respect of his judicial function.
Provided that he honestly believed that the action taken
was within his jurisdiction.
Judicial immunities in India
The Judicial Officers Protection Act, 1850
• Section 1 – 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 by him in the discharge of his judicial duty.
Anwar Hussain v. Ajoy Kumar Mukherji
• The SC held that – 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.
Sailjanand Pande v. Suresh Chandra Gupta
• In this case the Patna High Court did not extend the protection to the
magistrate under Judicial Officer’s protection Act, 1850 and held him
liable for the wrong of false imprisonment as he acting mala fide,
illegally and outside his jurisdiction ordered the arrest of the
plaintiff.
• Judicial privilege is available only for judicial process not for the
administrative process.
State of U.P. v. Tulsi Ram
• Judicial magistrate acting negligently signed an order for the arrest
of 5 persons. Among whom 3 persons were convicted for certain
offences. 2 of them were acquitted.
• The magistrate without looking into the order of the High Court,
signed the order of arrest against all 5 persons.
• The Allahabad High Court held that – the Magistrate was liable for the
wrongful arrest of the plaintiffs. In signing the order for arrest he
was not performing any judicial function but only an executive
function and therefore, the protection under the act could not be
extended to him in this case.
Judges (Protection) Act, 1985
• Sec.3 – no court shall entertain or continue
any civil or criminal proceedings against any
person who is or was a judge for any act,
thing or word committed, done or spoken by
him while acting in the discharge of his
official duty.
• The act confers a very wide protection
which is not limited to judicial functions but
also covers official functions.
 Executive acts
• An officer who commits a tort in direct obedience
to the orders of a public authority, civil or military,
which are apparently valid, is not, liable to an
action in tort.
• The principle of the rule is that unless the officers
enjoy such immunity, public administration would
not be possible .
• In India, the executive government and officers, in
general do not enjoy any protection except that
conferred by legislative enactments.
• The state and its officers are, however, not liable
when the wrongful act falls within the purview of
act of state.