Chapter IV.: General Exceptions.

Conditions excluding liability for act prima facie wrongful. We have considered the general principles of liability for civil wrongs. It now becomes needful to consider the general exceptions to which these principles are subject, or in other words the rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. It is an actionable wrong, generally speaking, to lay hands on a man in the way of force or restraint. But it is the right of every man to defend himself against unlawful force, and it is the duty of officers of justice to apply force and restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if he does he must abide its ordinary chances. Here the harm done, if not justified (for, though in a manner unavoidable, it was not in a legal sense necessary), is nevertheless excused. Again, defamation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again, “sic utere tuo ut alienum non laedas” is said to be a precept of law; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them.

General and particular exceptions. Some of the principles by which liability is excluded are applicable indifferently to all or most kinds of injury, while others are confined to some one species. The rule as to “privileged communications” belongs only to the law of libel and slander, and must be dealt with under that particular branch of the subject. So the rule as to “contributory negligence” qualifies liability for negligence, and can be understood only in connexion with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conveniently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of General Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called “acts of state,” nor of judicial acts. Executive acts of lawful authority form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also, there are various cases in which unqualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right: inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions amounting to acceptance of the risk, and harm inflicted in self-defence or (in some cases) otherwise by necessity. These grounds of exemption from civil liability for wrongs have to be severally examined and defined. And first of “Acts of State.”