• Lex Specialis


Ritwik Tyagi


There are several defences available to a defendant in a case against him/her arising out of a tort. In order to justify a tortious action, a defendant can take the pleas of statutory authority, mistake, act of god, malicious prosecution and many others. In this article, we shall be covering the ground of statutory authority as a defence under the law of torts.

What is Statutory Authority?

It is the supreme responsibility of the State to take care of the welfare of its people. This principle is enshrined under the Latin maxim, salus populi suprema lex, which translates to “welfare of the people is the paramount law.” In accordance with this principle, the State is entrusted with the task of undertaking all actions which are deemed necessary for ensuring the public good, even if the good comes at the cost of private rights of individual citizens.

In simple language, the term ‘statutory authority’ refers to an authority, i.e., a right, power or privilege, that has been conferred upon a person, or body of persons, to act in a certain manner. In the literal sense, the term can be interpreted to mean that the actions of any person who has been granted statutory authority to perform those actions, cannot be brought under the scanner in the court of law for being unlawful or even against public policy. In order to understand the concept, it can be said that this person, by way of a legislation or a statute, has been granted immunity from being prosecuted for certain actions which were performed in pursuance of the objects of the statute, or for securing public good and welfare of the people.

As a Defence under Law of Torts

In the context of being a defence under tort law, the term implies that the commission or omission of a tortious act cannot be brought under dispute as it was being performed with legal backing conferred by a statute. The underlying philosophy behind this defence of statutory authority is that the greater public good defeats the lesser private rights and the latter must yield to the former. What this means is that any act, which in the normal course of the law would be considered as a tort, must not be considered so since it has been authorised by the legislature. Consequently, this act could not be the potential source of an actionable claim in any court of law.

It must be noted that the scope of statutory authority extends to include even those acts which were incidental to the act covered under the statute, or those acts which were a direct result of the original act. However, it will not include circumstances where the person exercising the authority has acted in a manner which is negligent. Statutory authority can be of two types: first, absolute; and second, conditional. In the former category, no liability accrues upon the accused except in such cases where the plaintiff shows that the accused acted negligently in performing his/her actions. In the latter, the grant of the authority is based upon certain conditions that must be fulfilled.

Case Laws

In the case of Hammersmith and City Railway Co. v. Brand, railway lines were constructed near the house of Brand - the original plaintiff - under a statutory provision. However, due to the noise, smoke and vibrations that were produced whenever a train passed by, the value of the property depreciated quickly, causing agony to the plaintiff, who sued the railway company for compensation. Holding the company not liable, the Court observed that “in the absence of negligence, damage caused by operations authorised by statute is not compensable unless the statute expressly so provides.” Thus, no damages could be recovered from the railway company as the actions it performed of constructing the railway lines and running trains on them came under the purview of statutory authority.

In the case of Bhogilal Maganlal v. Ahmedabad Municipality, it was discussed that no suit can lie on behalf of a man who sustains a private injury by the execution of powers given by a statute, those powers being exercised with judgement and caution. However, if it is determined by the Court that said injury was an avoidable one, had reasonable precautions been taken, then a suit for damages will sustain. It was also noted that the absence or presence of requisite precaution can be ascertained by the Court by looking into the circumstances of each case, such as by examining the urgency of the work required, the practicability of the precautions to be taken and other determining factors. In another case, Green v. Chelsea Waterworks Company, the defendant company was under a statutory obligation to maintain a high water pressure in the water main. Subsequently, a burst in the water main caused damage to the claimant’s land, who sued the company. The defence of statutory authority presented by the company was accepted and they were absolved of any liability under the strict liability rule developed in Rylands v. Fletcher.

In Allen v. Gulf Oil Refinery, the defendant had constructed an oil refinery near the residence of the claimant. This act had been authorised by an Act of Parliament. Later, due to the noise, foul smell and other nuisance from the refinery, the claimant brought an action against the refinery. The defence of statutory authority was accepted and the defendant was not found liable. It was observed that, “...the statutory authority extends beyond merely authorising change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site not, I repeat, the existing refinery, but any refinery however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy.

In another case, namely Smith v. The London and South Western Railway Company, workers of the defendant railway company were employed in the task of trimming hedges that bordered the railway lines. The workers placed the trimmed parts near the lines and subsequently, a fire from a passing railway engine ended up igniting them. The resultant fire burned the plaintiff’s goods which were lying in a cottage around 200 yards away. It was held that the railway company could not rely upon the defense of statutory authority in these circumstances as they owed a duty of care to the plaintiff and they were negligent in their actions.


Thus, this article has discussed the defence of statutory authority under the law of torts in great detail. The types of statutory authority have also been dealt with and numerous case laws have been cited to elucidate the concept and explain its technicalities that have evolved through the judicial route.


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