Statutory Authority : General Defences in Tort

When a statute authorises the doing of an act, which would otherwise be a tort, the party injured has no remedy except the one (if any) provided by the statue itself. The immunity under statutory authority is not only for that harm, which is obvious, but also for that harm which is incidental to the exercise of such authority. The underlying philosophy behind the statutory immunity is that lesser private right must yield to greater public interest.

In Hammer Smith Rail Co. v. Brand, (1869) HL 171, the value of the plaintiff’s property considerably depreciated due to the noise, vibration and smoke caused by running of trains on a railway track constructed under statutory powers. The damage being necessarily incidental to the running of trains authorised by statute, it was held that no action lies for the same.

An important point to note in this regard is that the act authorised by the legislature must be done with reasonable care, and therefore, an action lies for doing that which the legislature had authorised, if it be done negligently. In Smith v. London and South Western Railway Co., the employees of a railway company negligently left trimmings of grass near a railway line. Sparks from an engine set the material on fire. The fire was spread to the plaintiff’s cottage nearby. The Railway Company was held liable for negligence.

In Ramchandraram Nargam Rice & Oil Mills Ltd. case (AIR 1943 Pat 408), the plaintiff had dispatched hundreds of ‘canisters’ full of mustard oil, manufactured by them. At the railway station, these ‘canisters’ were seized by the Sanitary Inspector and were loaded in a truck, which was used for carrying rubbish and night soil. Owing to this action, the plaintiffs suffered a huge loss. Held that the action of the municipality was unreasonable arid that it negligently caused damage to the plaintiff.

In Metropolitan Asylum District v Hill (1881) 6 A.C. 193, a local authority, having statutory authority to erect a smallpox hospital, was restrained from erecting one in a place in which it would have been a source of danger to the residents of the neighbourhood. This statutory authority was construed, not as an absolute authority to erect a hospital where the defendants pleased, and whether a nuisance was thereby created or not, but as conditional authority to erect one if they could obtain a suitable site where no nuisance would result.