GOJ Part 6 Official capacity & obedience to orders

Question 1

Official capacity what is the context?

Answer 1

The context is that certain officials injure others, if it is authorised by statute then statutory authority is applicable. If not authorised by statute then an important question that needs to asked is:
whether the harm causing conduct falls within the bounds of the official authority of the person

Question 2

What is the ultimate criterion for official capacity matters?

Answer 2

It is whether or not it is reasonable to impose liability on a person who caused the harm: public policy will dictate whether or not it is reasonable

Question 3

What is the position of obedience to orders?

Answer 3

So far this has only been raised in criminal cases but can arise as defence in civil action

Question 4

S v Banda sets out circumstances where obedience to a wrongful order can be a ground of justification, what are those circumstances?

Answer 4

• the order must come from a person in a position of lawful authority over the accused
• there must have been a duty on the accused to obey the given order: When does a duty to obey wrongful order exist or when obedience to wrongful order can be GOJ for causing harm
• no blind or absolute duty to follow order
• courts will determine whether order is wrongful according to the judgement of a reasonable person
• in line with S v Goliath principle: the law does not require person acting under duress to conform to higher standard than that of an average person
• compulsion/duress can be complete defence
• person acting under compulsion/duress only has to act as the average or reasonable person would under the circumstances.
• defendant must have caused no more harm than what was nec to carry out order
• involves general criterion of reasonableness