TORT 022 Statutory Authority — Law of Torts Notes for Judiciary

Statutory Authority: Absolute and Conditional Authority, and Why the Defence Turns Entirely on Construction

What the legislature authorises cannot be a tort. If a statute directs or permits a thing to be done, a person who does it is not liable for harm that is the inevitable result of doing it, and the injured party's remedy, if any, is the compensation the statute itself provides. The whole question is therefore one of construction: what exactly did the statute authorise? The answer produces the division between absolute authority, where the thing is directed or permitted without qualification, and conditional authority, where it is permitted only if it can be done without interfering with others' rights. And in neither case is negligence in the doing of it ever authorised.

The two kinds of authority, what is never authorised, and the three questions in order

1. The Principle

An act done under the authority of a statute is not a tort, so far as the harm was the inevitable consequence of doing the authorised thing.
The reason is that the legislature must be taken to have weighed the competing interests when it authorised the activity, and to have intended the consequences that necessarily follow.
The defence protects the inevitable and nothing more. Harm that could have been avoided by reasonable care, or by doing the thing in a different way, is not protected at all.
The burden is on the defendant to show that the harm was unavoidable.
The remedy, where the statute gives one, is the statutory compensation, and the existence of such a provision is strong evidence that the legislature contemplated the harm and intended to bar the ordinary action.

2. Absolute Authority

The statute directs the thing to be done, or authorises it without qualification.
No action lies for harm that is the inevitable result. A railway authorised by statute will inevitably produce noise, vibration and sparks, and to that extent there is no actionable nuisance.
Vaughan v. Taff Vale Railway (1860) 5 H & N 679 is the standard illustration. Sparks from an engine operated under statutory authority set fire to the plaintiff's woods. The company was held not liable, having taken all reasonable precautions, because the legislature had authorised the running of engines and some escape of sparks was inevitable.
Hammersmith and City Railway Co. v. Brand (1869) LR 4 HL 171 is to the same effect for vibration and noise caused by the authorised running of trains.
The consequence is that the loss lies where it falls, unless the statute provides compensation.

3. Conditional Authority

The statute permits the thing to be done only if it can be done without interfering with the rights of others. The authority is qualified from the outset.
The defendant must show that the harm was unavoidable. If the object could have been achieved without causing the harm, the defence fails.
A power to do a thing somewhere is not authority to do it anywhere. If a different site or a different method was available and would have avoided the harm, the harm was not inevitable.
The language usually gives the answer. Words such as "may" and "is empowered to", especially with a choice of place or method, point to conditional authority; words of direction point to absolute authority.

📖 Metropolitan Asylum District v. Hill (1881) 6 App Cas 193

Facts The appellants, a statutory body, were empowered to provide hospitals. They erected a smallpox hospital in a populous neighbourhood at Hampstead. The respondents, neighbouring occupiers, complained that it was a nuisance and a danger to health, and sought an injunction.

Held The statutory authority was no defence. The injunction was granted.

Ratio The statute conferred a power and not a duty, and gave a choice of site. It therefore authorised the erection of a hospital only where it could be done without creating a nuisance. Where a power may be exercised without infringing private rights, the legislature is not to be taken to have authorised the infringement, and the body exercising it must do so in a manner consistent with those rights.

4. What Is Never Authorised

	Why the defence does not protect it
Negligence in doing the authorised act	No statute is construed as authorising carelessness. The authority is to do the thing, not to do it badly
Harm that could have been avoided	The defence protects the inevitable consequence only. If reasonable care or a different method would have prevented the harm, it was not inevitable
Acts beyond the statute	An act ultra vires the statute is not authorised at all, and the defence has no application to it
An excess beyond what the statute required	Noise or smoke beyond what the authorised operation necessarily produces is actionable exactly as before
A failure to comply with conditions in the statute	Where the authority is subject to conditions, non compliance takes the act outside the authority
Breach of a duty the statute itself imposes	The statute may create liabilities as well as immunities, and the defence does not answer those

5. Statutory Authority and Nuisance

This is where the defence is most often raised. A railway, a power station, a sewage works or an airport authorised by statute will inevitably produce noise, smoke, smell or vibration.
To the extent that those consequences are inevitable, there is no actionable nuisance, and the neighbour's remedy is whatever the statute provides.
But the defence does not license an unnecessary or negligent excess. If the operation can be conducted with less noise or less smell, the excess is actionable.
The modern statutes usually provide their own machinery, through environmental regulation, pollution control boards and the National Green Tribunal, and the common law action runs alongside rather than in place of it.
Section 91 of the Code of Civil Procedure, 1908 governs suits in respect of public nuisance, and is a separate route with its own requirements as to who may sue.

6. The Three Questions, in Order

1. What exactly did the statute authorise? This is a question of construction, and it decides everything that follows. Identify the precise power or duty, and its limits.

2. Is the authority absolute or conditional? Absolute if the thing is directed, or permitted without qualification; conditional if permitted only so far as it can be done without injury, or where a choice of place or method is given.

3. Was the harm the inevitable consequence of doing the authorised thing? Or was it the result of the manner in which it was done, which is never authorised?

4. If conditional, could the object have been achieved without the harm? If it could, the defence fails.

5. Was there negligence? If there was, the defence fails regardless of the answers to the earlier questions.

6. Does the statute provide compensation? If it does, that is the plaintiff's remedy, and its presence supports the conclusion that the ordinary action was intended to be barred.

7. Why Construction Does All the Work

⚠ The defence is only as wide as the words of the statute

Statutory authority is unlike the other general defences in that it has no content of its own. Volenti has three settled essentials; necessity has a settled test; act of God has two requirements. Statutory authority has only a question: what did this statute authorise? The answer may differ between two statutes in almost identical terms, because one confers a duty and the other a power, or because one names the site and the other leaves it to be chosen. Metropolitan Asylum District v. Hill turned on precisely that point: the body had a power and a choice, and so was authorised only to build a hospital somewhere it would not be a nuisance. A defendant relying on the defence must therefore begin with the words of the enactment, and a plaintiff resisting it should do the same.

8. The Position Stated Shortly

1. What the legislature authorises cannot be a tort, so far as the harm is the inevitable result of doing the authorised thing.

2. The question is entirely one of construction: what did the statute authorise?

3. Absolute authority directs or permits the thing without qualification, and no action lies for the inevitable consequences: Vaughan v. Taff Vale Railway.

4. Conditional authority permits it only if it can be done without interfering with others' rights, and the defendant must show that the harm was unavoidable.

5. Metropolitan Asylum District v. Hill holds that a power with a choice of site authorises the act only where it can be done without creating a nuisance.

6. Negligence in doing the authorised act is never authorised, and neither is any unnecessary excess.

7. An act beyond the statute is ultra vires and attracts no protection at all.

8. The defence is most often raised against nuisance, and it protects the inevitable noise, smoke or smell and nothing beyond.

9. Where the statute provides compensation, that is the plaintiff's remedy, and its presence supports the barring of the ordinary action.

10. The burden of establishing that the harm could not have been avoided lies on the defendant.