General Defences II

3. Mistake

The general rule is that mistake is no defence in tort, whether the mistake is of fact or of law. A person who takes another's umbrella honestly believing it to be his own has still committed a trespass to goods, and a person who enters the wrong plot honestly believing it to be his own has still trespassed.

The exceptions are the torts in which a particular state of mind is an ingredient.

Malicious prosecution requires the absence of reasonable and probable cause, so a prosecution launched on an honest and reasonable mistake fails at that element.

Deceit requires a false statement made knowingly, or without belief in its truth, or recklessly; an honest belief in the truth of the statement is therefore a complete answer.

Qualified privilege in defamation is not lost by an honest mistake, because what destroys it is malice in fact.

4. Statutory authority

Where the legislature authorises an act, the doing of that act is not a tort, and the person injured has such compensation as the statute provides and no more. The authority extends to the necessary consequences of what is authorised.

Absolute and conditional authority. Where a statute authorises a thing to be done absolutely, no action lies even for the inevitable harm it causes. Where it authorises a thing conditionally, that is, only if it can be done without causing harm, the person doing it must so conduct himself as to avoid the harm.

Negligence is not authorised. A statute that permits a railway to run trains does not permit it to run them carelessly, and the defence fails where the harm was caused not by the authorised act but by the negligent way it was done.

And a statutory power is not always a statutory duty. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997, is the Indian authority.

Facts. A pedestrian was killed when a roadside tree maintained by the Municipal Corporation fell on him. The trial court and the High Court held the Corporation liable, reasoning that its statutory power to plant and maintain roadside trees carried a corresponding absolute duty to keep them safe, so the claimants need not prove why the tree fell.

Held. The appeal was allowed and the decrees were set aside. A duty of care must be established before liability in negligence can arise, and a duty is not fastened on a public authority merely because it has a statutory power. The fall of the tree was not reasonably foreseeable by the Corporation, the damage was too remote, and no common law duty of the kind alleged arose. Because the claimants were poor and the money had probably been spent, the Court directed that the Rs. 45,000 already paid should not be recovered from them.

Why it matters here. It separates power from duty, which is the point at which most answers on statutory authority go wrong, and it should be read against Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, where a public body was held liable for a structure it had never inspected.

5. Judicial and quasi-judicial acts

A judge is not liable in tort for anything done in the discharge of judicial duty. The protection now comes from section 3 of the Judges (Protection) Act 1985, which provides that no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken when acting or purporting to act in the discharge of his official or judicial duty.

The Judicial Officers Protection Act 1850, which most books on this syllabus still cite, was repealed by the Repealing and Amending Act 2023 with effect from 17 December 2023. Chapter [Who May Not Be Sued] carries the detail.

The protection extends to persons exercising quasi-judicial functions, that is, functions of deciding between parties after hearing them, and it exists so that a decision is taken on the law and not out of fear of the loser. Article 361 of the Constitution gives a separate and wider protection to the President and the Governors.

6. Parental and quasi-parental authority

A parent, and a person standing in the place of a parent such as a schoolteacher, may do what is reasonably necessary for the correction, control and welfare of a child, and what would otherwise be a trespass to the person is not actionable. The authority is limited by reasonableness and by the purpose: it justifies restraint and moderate correction for the child's benefit, and never cruelty. What is reasonable has narrowed a great deal, and statutes protecting children now confine it much further than the old cases did.

A worked example

A municipality is authorised by statute to lay a water main along a street. While the work is going on:

One. The vibration of the machinery cracks a shopkeeper's wall. If the cracking is an inevitable consequence of laying a main by any reasonable method, statutory authority is a defence and the shopkeeper's remedy, if any, is the compensation the statute provides.

Two. The contractor leaves an unlit trench across the footpath at night and a passer-by falls in. Statutory authority is no defence: the statute authorised the main, not the negligence.

Three. A workman pushes away a man who is swinging a rod at him, and the man falls and is hurt. Private defence answers the claim if the force used was necessary and proportionate.

Four. The workmen break down the door of an empty house to stop a fire spreading from the trench. Necessity answers the claim, because the harm prevented was greater than the harm done and they acted reasonably.

What it does NOT mean

Statutory authority does not authorise negligence. It covers the act and its necessary consequences, not a careless way of doing it.

A statutory power is not a statutory duty. Rajkot Municipal Corporation holds that a duty of care must be established independently.

Mistake is not generally a defence. It excuses only where the tort itself requires a state of mind that the mistake negatives.

Private defence is not revenge. Force used after the danger has passed is not defensive and is itself a tort.

Quick revision

1. Private defence: reasonable and proportionate force for person or property; sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023 state the same right in the penal law.
2. Necessity: a lesser harm to prevent a greater; usually against an innocent person; no defence if the defendant created the emergency.
3. Mistake: generally no defence; excuses in malicious prosecution and deceit, where the required state of mind is absent.
4. Statutory authority: covers the authorised act and its necessary consequences; absolute authority excuses inevitable harm, conditional authority does not; negligence is never authorised.
5. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552: a statutory power does not by itself create a duty of care; the appeal was allowed.
6. Judicial acts: section 3 of the Judges (Protection) Act 1985; the Judicial Officers Protection Act 1850 was repealed in 2023; article 361 protects the President and Governors.
7. Parental and quasi-parental authority: reasonable correction and control for the child's welfare only.

Test yourself

1. Explain statutory authority as a defence in tort. Where the legislature authorises an act, doing that act is not a tort, and the injured person has only such compensation as the statute gives. The authority extends to the necessary consequences of what was authorised, so harm that cannot be avoided if the authorised thing is done at all is not actionable. The distinction between absolute and conditional authority matters: where the statute authorises the act absolutely, inevitable harm is excused; where it authorises it only if it can be done without injury, the actor must so conduct himself as to avoid injury. Negligence is never authorised, so the defence fails where the harm flowed from a careless manner of doing the authorised act. And a statutory power is not a statutory duty: in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, the Supreme Court set aside decrees against a corporation for a falling roadside tree, holding that a duty of care must be established and is not created merely by the existence of a power.

2. Is mistake a defence in tort? As a general rule it is not, whether the mistake is of fact or of law. A person who honestly believes goods to be his own still commits trespass to goods by taking them, and one who honestly believes land to be his own still trespasses by entering it, because those torts require only an intentional act and not a guilty mind. Mistake operates only where the tort itself requires a particular state of mind which the mistake negatives. In malicious prosecution the plaintiff must prove the absence of reasonable and probable cause, so a prosecution launched on an honest and reasonable mistake is not actionable. In deceit the statement must be made knowingly, or without belief in its truth, or recklessly, so honest belief is a complete answer. And qualified privilege in defamation survives an honest mistake, since only malice in fact destroys it.

3. What is the extent of the right of private defence in tort? A person may use force to defend his own body, another's body, and property in his possession against an unlawful attack, and the same right is declared for the criminal law by sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023. The force must be necessary, so that if the harm can be avoided without force none may be used, and it must be proportionate to the threat, judged by what the defender reasonably apprehended rather than by the outcome. Property may be defended, but not by force intended to cause death. The right ends when the danger ends: force used afterwards is retaliation and is itself a tort.

4. Explain necessity, and distinguish it from private defence. Necessity excuses an act that would otherwise be a tort where it was done to prevent a greater harm, as where a house is pulled down to stop a fire spreading, cargo is jettisoned to save a ship, or a surgeon operates on an unconscious patient to save life. The harm prevented must be greater than the harm caused, the defendant must have acted reasonably on the facts as they appeared, and the defence is not open to a person who created the emergency himself. It differs from private defence in the person against whom it operates: private defence is directed against a wrongdoer and answers his own attack, while necessity is usually exercised against an innocent person or his property, which is why the courts confine it narrowly.