LAW OF TORTS- HISTORY

The law of tort is mainly the product of judicial decisions.

The legislatures too have played a significant
role in the development of this branch of law by
defining liabilities in various situations. E.g. Fatal
Accidents Act, Law Reform (Contributory Negligence)
Act, 1945, Defamation Act, 1955, etc.
The law of Torts in India:
Under Hindu law and Mohammedan law, tort
had a much narrower conception than the tort of the
English law. The punishment of crimes in these
systems occupied a more prominent place than
compensation for wrongs.

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 LAW OF TORTS- HISTORY
The law torts as administered in India in modern
times is the English law as found suitable to Indian
conditions and as modified by the Acts of the
Indian legislature.
Earlier, Mayor’s courts, Supreme courts, High
courts in presidential towns, Bombay, Madras and
Calcutta, applied English Common law. So far as
other courts were concerned, there was no
express provision for the administration of English
law. These courts applied, in the most of the cases,
the principle of Justice, Equity and Good
conscience.
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 LAW OF TORTS- HISTORY
The law torts or civil wrong in India is, thus,
almost wholly the English law which is administered
as rules of justice, equity and good conscience. The
Indian courts, however, before applying any rule of
English law, can see whether it is suited to Indian
society and circumstances.
Thus, a general rule is that the principles of
English law have been deemed to be applicable in
India. In a very few areas, there has been an
independent development of this branch of law,
laying down different rules from those prevailing in
England.

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 LAW OF TORTS- NATURE
NATURE AND DEFINITION OF TORT:
The word ‘Tort’ has been derived from the Latin term
‘Tortum’ which means ‘to twist’. Therefore, it includes
that conduct which is not straight or lawful, but, on the
other hand, twisted, crooked or unlawful.
The term ‘tort’ is the French equivalent of the English
word ‘wrong’ and of the Roman law term ‘delict’.
Definitions: Generally, ‘Tort’ may be defined as a civil
wrong which is redressible by an action for
unliquidated damages and which is other than a mere
breach of contract or breach of trust.

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 LAW OF TORTS- NATURE
Some other definitions:
Winfield & Jolowicz: “Tortious liability arises from
the breach of a duty primarily fixed by law; this duty
is towards persons generally and its breach is
redressible by action for unliquidated damages”.
Salmond : A tort is ‘ a civil wrong for which the
remedy is a Common law action for unliquidated
damages, and which is not exclusively the breach of
a contract or the breach of trust or other merely
equitable obligation”.

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 LAW OF TORTS- NATURE
Features:
1. It is a civil wrong;
2. Other than breach of contract and of trust;
3.Redressible by an action for unliquidated damages.
----------------------------------------------------
Civil wrongs:
In case of civil wrong, the injured party. i.e. the
plaintiff, institutes civil proceedings against the
wrongdoer, i.e. the defendant. In such a case, the
main remedy is damages (compensation). The plaintiff
is compensated by the defendant for the injury caused
to him by the defendant.
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 LAW OF TORTS- NATURE
‘Liquidated damages’ means such compensation which
has been previously determined or agreed to by the
parties. ‘Unliquidated damages’-When the
determination of the compensation is left to the
discretion of the court, the ‘damages’ is said to be
unliquidated. In case of tort, there is no possibility of
any such pre-determination of damages by the parties.
Is it law of Tort or Torts?
Salmond has posed the question,
Is it the law of tort? i.e. Is every wrongful act, for which
there is no justification or excuse, to be treated as a
tort? Or
Is it the law of torts? i.e. Consisting only of a
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 LAW OF TORTS- NATURE
number of specific wrongs beyond which the liability
under this branch of law cannot arise.
Winfiled preferred the first of these alternatives and
according to him, it is the law of tort. According to this
theory, if I injure my neighbour, he can sue me in tort
whether the wrong happens to have particular name,
like assault, battery, deceit, slander or whether it
has no special title at all; and I shall be liable, if I
cannot prove lawful justification [ Winfield on Tort, 6 th
Edition p 14].
On the other hand, Salmond preferred the
second alternative and for him there is no law of tort,
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 LAW OF TORTS- NATURE
but there is law of torts. The liability under this
branch of law arises only when the wrong is
covered by any one or the other nominated torts .
There is no general principle of liability and if the
plaintiff can place his wrong in any one of the
pigeon- holes, each containing a labelled tort, he will
succeed.
This theory is also known as ‘Pigeon-hole
theory’. If there is no pigeon-hole in which the
plaintiff’s case could fit in, the defendant has
committed no tort.

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 LAW OF TORTS- TORT & CRIME
Distinction between Tort and Crime:
According to Blackstone, wrongs are divisible
into two sorts or species, private wrongs and public
wrongs. The former are infringement of the private
or the civil rights belonging to individuals and
thereupon they are frequently termed civil injuries.
But the latter are breach and violation of public
rights and duties which affect the whole community.
Tort is a civil wrong.
Followings are the distinctions between tort
and crime.

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 LAW OF TORTS- TORT &
TORT
CRIME
CRIME CRIME
1. It is an infringement of 1. It is a breach of public
the private or civil rights rights and duties which
belonging to individuals affect the whole
considered as community considered as
individuals. a community.
2. The wrongs which are 2. More serious wrongs have
comparatively less been considered to be
serious are considered to public wrongs and are
be private wrongs and known as crimes.
labelled as civil wrongs.
3. Generally, proceedings in
3. The action is brought by the name of the State
the injured party. except private complaints.
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 LAW OF TORTS- TORT &
CRIME
TORT CRIME
4. Compromise between 4. Compromise not allowed,
the parties is allowed except compoundable
offences [section 320 of
5. Wrongdoer has to Cr. P. C.].
compensate the injured 5. Wrongdoer is punished
party by the State in the
interest of society.
6. Object of awarding
compensation is to make- 6. Object of punishment
good the loss suffered by mainly to protect the
the party. society by preventing the

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 LAW OF TORTS- TORT &
CRIME
TORT CRIME
offender from committing
further offences and
deterring him and others
from committing wrongs.
7. The award of
7. The award of compensation is ancillary
compensation, generally, to the primary purpose of
is the main purpose. punishing the offender
[section 357 of Cr. P. C].

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 LAW OF TORTS- TORT & CRIME
But there are various wrongs which find their
place both under criminal law and law of torts.
E.g. – Assault, Defamation, Negligence, Nuisance, etc.
Thus, sometimes the same set of facts may
constitute both a tort and a crime. The civil and
criminal remedies, in such a case, are not
alternative, but they are concurrent. The wrongdoer
may be required to pay compensation under law of
torts, he may also be held liable under criminal law.
E.g. – If A digs a ditch on a public road resulting in
inconvenience to the public at large, A has
committed the offence of public nuisance as defined
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LAW OF TORTS- TORT & CRIME

in section 268 of Indian Penal Code. If X, a

passer-by, falls into that ditch and thereby
gets injured, A’s act also becomes a tort of
private nuisance as against X.

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 LAW OF TORTS- TORT & CONTRACT
TORT CONTRACT
1. It is inflicted without or 1. It is founded upon consent.
against consent. 2. Duties are undertaken by
2. Duties are imposed by the parties themselves.
law. 3. It necessitates privity
between the parties to it.
3. No privity needed 4. Breach of contract is an
infringement of a right in
personam, i.e. of a right
4. It is a violation of a right in available only against some
rem, i.e. of a right definite person or body
available against the
whole world at large.
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 LAW OF TORTS- TORT & CONTRACT
TORT CONTRACT
and in which a
community at large has
5. Motive is often taken into no concern.
consideration. 5. Motive for the breach of
contract is immaterial.
6. Damages are always
unliquidated [i.e. not pre- 6. Damages may be
determined] liquidated.

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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
Law torts is fashioned as “an instrument for making
people adhere to standards of reasonable behaviour
and respect the rights and interests of one another”.
Every wrongful act is not a tort. To constitute a tort,
following essentials are necessary.
1. Wrongful act- There must be a wrongful act committed
by a person.
2. Damage – The wrongful act must give rise to legal
damage or actual damage.
3. Remedy- The wrongful act must be of a such a nature
as to give rise to a legal remedy in the form of an action
for damages.

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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
1. Wrongful act: [It includes act (i.e. commission) or
omission]
In order to make a person liable for a tort, he must
have done some act which he was not expected to
do or he must have omitted to do something which
he was supposed to do.
E.g.- If A commits trespass, assault, defamation, etc., it
amounts to act or commission. But if employer fails
to provide safe system of work or if a person fails to
put a proper fencing to keep the children away from
the danger spot, it amounts to omission.

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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
But it must be noted that the wrongful act or
omission must be one recognized by law. If there is
mere moral or social wrong, there cannot be a
liability for the same.
Example: If somebody fails to help a starving man or
save drowning child, it is only a moral wrong.
Therefore, no liability can arise for that unless it
can be proved that there was a legal duty to help
the starving man or save the drowning child.
Thus, the word ‘act’ in this context used in a
wide sense to include both positive and negative
acts, i.e. acts and omissions.
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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
2.Damage:
It means harm or loss suffered or presumed to be
suffered by a person as a result of some wrongful act of
another. The sum of money awarded by court to
compensate ‘damage’ is called “Damages”.
For the purpose of presumption of damage rights are
classified into – 1. Absolute and 2. Qualified.
When an absolute right is violated, the law conclusively
presumes damage although the wronged may have
suffered no pecuniary loss whatsoever. The damage so
presumed is called ‘Legal damage’. Violation of absolute
right is actionable per se , i.e. without proof of any
damage.
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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
But in case of qualified rights, there is no presumption
of legal damage and violation of such rights is
actionable only on proof of actual or special damage.
There are two maxims:
1. “Injuria sine damno”[ Injury without damage]
2. “Damnum sine injuria”[ damage without injury]
------------------------------------------------------------------
1. “Injuria sine damno” [i.e. violation or infringement of
legal right without causing any damage or loss]-
‘Damnum’ means ‘Damage’, in the substantial sense
of money, loss of comfort, service, health or the like.

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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
‘Injuria’ means violation or infringement of right.
It means a tortious act. It need not be wilful and
malicious. Because, though it be accidental, if it
be tortious, an action will lie.
‘Injuria sine damno’ covers the cases
which are actionable per se, i.e, actionable
without the proof of any damage or loss. E.g.
trespass to land.
Here the only thing to be proved is that the
plaintiff’s legal right has been violated, i.e. there
is injuria.
Trespass to person, that is assault, battery
and false imprisonment and trespass to
property,
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 LAW OF TORTS- CONSTITUENTS OR
ELEMENTS
whether it be land or goods, and libel are instances
of torts that are actionable per se and the court is
bound to award to the plaintiff at least nominal
damages, if no actual damage is proved .
If there is merely a threat of infringement of a
legal right without the injury being complete, the
person whose right has been threatened can bring a
suit under the provisions of the Specific Relief Act
for declaration or injunction.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
The leading case for ‘Injuria sine damno’ –
Case: Ashby V. White- (1703).
Facts: The defendant, a Returning Officer, wrongly
refused to register a duly tendered vote of the
plaintiff, a legally qualified voter, at a Parliamentary
election and the candidate for whom the vote was
tendered was elected, and no loss was suffered by
the rejection of the vote.
Nevertheless, it was held that the defendant
was liable.
[Decision of this case is negatived in so far as section
50 of the Representation of People Act, 1949
(England)- which provides that no action will lie in
respect of the breach of official duty by a Returning
Officer.
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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
Breach of such duty is not more a civil wrong.
Remedy is by way of punishment.
A similar provision in India, section 134 of
Representation of People Act, 1951. However, the
principle laid down in the above case remains
unaffected by the above stated provisions in the
Representation of People Acts]
[In the above case, Returning Officer acted
maliciously. Therefore, where a Returning Officer
without any malice or improper motive, in exercising
his judgement, honestly refused to receive the vote
of a person entitled to vote at an election, it was
held that no action will lie (Tozer V. Child- 1857)].

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS

If a person entitled to be upon the electoral

roll is wrongfully omitted from such roll so as to be
deprived of his right to vote, he suffers a legal
wrong for which an action lies [The Municipal Board
of Agra V. Asharif lal- 1922].
Banker refusing to honour customer’s cheque :
If a banker refuses to honour customer’s
cheque, even though sufficient fund is in the
customer’s account, an action lies for that though
the customer did not thereby sustain any actual loss
or damage [Marzetti V. Williams- (1830)].

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS

Case: Bhim Singh V. State of J & K- AIR 1986 SC 494.

Petitioner MLA was wrongly detained by the
Police, but he was not produced before the
Magistrate. He was deprived of his constitutional
right to attend the Assembly Session. There was
violation of fundamental right under Article 21 of the
Indian Constitution. By the time the petition was
decided by the Supreme Court, Bhim Singh had
been released, but by way of consequential relief
exemplary damages amounting to Rs. 50,000 was
awarded to him.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
2. “Damnum sine injuria”[ damage without injury]
When there is actual and substantial loss
without infringement of any legal right, no action
lies.
It means damage which is not coupled with
an unauthorized interference with the plaintiffs
lawful rights. Mere loss in money or money’s worth
does not of itself constitute a tort .
There are many acts which, though harmful,
are not wrongful and give no right of action . Thus, if
A has a mill and his neighbour sets up another mill
and thereby the profits of A’s mill fall off, then A
cannot bring an action against his neighbour,
though he suffered damage.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS

Thus, in a suit for damages based on a tort, the

plaintiff cannot succeed merely on the ground of
damage unless he can show that the damage was
caused by violation of his legal rights.
Case: Gloucester Grammar School’ case- 1410.
Facts: The defendant, a school master, set up a rival
school next door to the plaintiff’s school and boys from
the plaintiff’s school flocked to defendant’s school.
Because of the competition, the plaintiff had to reduce
fees.
It was held that no action could be maintained .
Competition is no ground of action whatever damage it
may cause, provided nobody’s legal rights are infringed.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
Case: Mogul Steamship Co. Vs. Mc Gregor,
Gow & Co.- 1892 AC 25.
Facts: A number of steamship companies combined
together and drove the plaintiff company out of the
tea-carrying trade by offering special terms to
customers like reducing freight.
It was held that plaintiff had no right of
action, because no legal right of plaintiff had
been infringed. Damage done by competition in
trade was not actionable.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
Indian case:
Case: Dehadphale V. Gurav- (1881) 6 Bom.
Facts: Servants of Hindu temple had a right to get the
food offered to the idol. But the person who was
under an obligation to the idol to offer food did not
do so. Servants brought suit against him for
damages.
It was held that the defendant was under no
legal obligation to supply food to the temple’s
servants and though his omission to supply the food
to the idol might involve a loss to the plaintiffs, it was
a damnum absque injuria and could not entitle the
plaintiffs to maintain a suit.
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LAW OF TORTS- CONSTITUENTS OR ELEMENTS
Case: Town-Area Committee V. Prabhu Dayal- AIR 1975
All 132.
Facts: The plaintiff constructed 16 shops on the old
foundation of a building. The said construction was made
without giving a notice of intention to erect a building
under section 178 of the U. P. Municipalities Act and
without obtaining a necessary sanction required under
section 180 of that Act. The defendants demolished this
construction. In an action against the defendants to claim
compensation for the demolition the plaintiff alleged that
the action of the defendant was illegal as it was malafide.
It was held that the defendants were not liable as no
‘injuria’ could be proved because if a person constructs a
building illegally, the demolition of such building by the
municipal authorities would not amount to causing ‘injuria’
to the owner of the property.

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 LAW OF TORTS- CONSTITUENTS OR ELEMENTS
3. Remedy:
The essential remedy for a tort is an action for
damages. But there are other remedies also, e.g.
Injunction may be obtained in addition to damages in
certain cases or wrongs, specific restitution of a chattel
may be claimed in an action for a detention of a
chattel, in case of dispossession of land, the plaintiff in
addition to damages also claims to recover the land
itself, etc. Damages claimable in tort are unliquidated
damages.
The law of torts is said to be a development of
the maxim ‘ubi jus ibi remedium’ (where there is right,
there is remedy).

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 LAW OF TORTS- ELEMENTS IN TORTS
GENERAL ELEMENTS IN TORTS:
1. Act and Omission;
2. Voluntary and Involuntary acts;
3. Mental elements-
(a) Malice,
(b) Intention,
(c) Motive;
4. Malfeasance, Mis-feasance and non-feasance;
5. Fault.

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 LAW OF TORTS- ELEMENTS IN TORTS
1. Act and Omission:
It has been already discussed that to
constitute a tort there must be a wrongful act. The
word ‘act’ in this context is used in a wide sense to
include both positive and negative acts.
Acts and omissions must be distinguished
from mere thoughts and intentions which are by
themselves harmless, hard to prove and difficult to
discipline [SALMOND - Jurisprudence].
Law does not impose liability for mere
omissions. An omission incurs liability when there is
a duty to act.

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LAW OF TORTS- ELEMENTS IN TORTS
2. Voluntary and Involuntary acts:
Activities outside normal human control are
involuntary acts. For example, acts performed by
persons suffering from some abnormal conditions,
like acts done in sleep. It would be unjust and
unreasonable that they should be penalized for
those acts. An involuntary act does not give rise to
any liability, e.g., an involuntary act of trespass.

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LAW OF TORTS- ELEMENTS IN TORTS
3. Mental elements-
Mental element is an essential element in most of the
forms of crime. But it is not so easy to make any such
generalization about liability in tort. Even a voluntary
act, except in those cases where the liability is strict, is
not enough to fasten liability and it has to be
accompanied with requisite mental elements.
(a) Malice:
In the popular sense, it means spite or ill will. But in
law, it has two distinct meanings:
1. Intentional doing of a wrongful act; and
2. Improper motive.
In the first sense, it is synonymous with ‘ intention’ and I
the second sense, it refers to the ‘ motive’.

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LAW OF TORTS- ELEMENTS IN TORTS
The use of the word ‘malice’ in the first sense, i.e.,
intentional wrong doing, which is also known as
‘malice in law’.
‘Malice in law’ means an act done wrongfully and
without reasonable or just cause. ‘Malice in law’ is
‘implied malice’ when from the circumstances of the
case, the law will infer malice.
Malice in the second sense, i.e. improper motive, is
sometimes known as ‘express malice’, ‘actual
malice’ or ‘malice in fact’. Malice in this sense, is
relevant in the tort of malicious prosecution.
Thus, the ‘malice in law’ simply signifies a wrongful act
done intentionally without just cause of excuse . It
simply means a wrongful intention which is
presumed in case of an unlawful act rather than a
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 LAW OF TORTS- ELEMENTS IN TORTS
bad motive or feeling of ill will. ‘Malice in fact’ means
an evil motive for a wrongful act. When the
defendant does a wrongful act with a feeling of spite
or ill will, the act is said to be done maliciously.
(b) Intention:
It relates to the immediate objective of an act . It is an
internal fact, something which passes in the mind
and direct evidence of which is not available.
(c) Motive:
It is the ulterior object or purpose of doing an act. It
differs from intention. Intention is immediate purpose
and motive is ulterior purpose. Motive refers to some
personal benefit or satisfaction which the wrong doer
desires, intention need not be so related to the
wrong doer.
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 LAW OF TORTS- ELEMENTS IN TORTS
Example: When ‘A’ poisons ‘B’, the immediate objective is
to kill ‘B’ and so this is A’s intention. The ulterior
objective of ‘A’ may be to secure B’s estate by
inheritance or under a Will executed by him and this
objective will be ‘A’s motive.
Motive is generally irrelevant in tort. But an act which does
not amount to a legal injury cannot be actionable
because it is done with a bad motive. It is the act, not
the motive for the act, that must be regarded.
Thus, the wrongful act does not become lawful, merely
because the motive is good
Case: South Wales Miners’ Federation V. Glamorgan Coal
Company- (1905) AC 239.
Facts: The plaintiffs, the owners of coalmines, brought an
action against the defendants, a Miners’ Union, for
inducing its workman to make the breach of contract of

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 LAW OF TORTS- ELEMENTS IN TORTS
their employment by ordering them to take certain
holidays. The act of the defendant was not actuated
by any ill-will but the object was to keep up the price
of coal by which the wages were regulated.
The House of Lords held that the defendants
were liable.
Similarly, a lawful act does not become
wrongful because of a bad motive or malice
Exceptions: In the following exceptional cases, the
malice or evil motive becomes relevant in
determining liability under the law of torts.
1. In tort of deceit, conspiracy, malicious prosecution,
injurious falsehood. Here plaintiff has to prove the
malice on the part of the defendant.

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 LAW OF TORTS- ELEMENTS IN TORTS
2. In certain cases of defamation, when qualified
privilege or fair comment is pleaded as defence,
motive becomes relevant. The defence of qualified
privilege is available if the publication was made in
goodfaith. The presence of malice or evil motive
negatives goodfaith and the defendant cannot avoid
his liability by the defence of qualified privilege in
such a case.
3. Causing of personal discomfort by an unlawful
motive may turn an otherwise lawful act into
nuisance.
4. When the act is otherwise unlawful and wrongful
intention can be gathered from the circumstances of
the case.

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 LAW OF TORTS- ELEMENTS IN TORTS
Case: Balak Glass Emporium V. United India
Insurance Co. Ltd. –AIR 1993 Ker. 342.
Facts: In a multi-storeyed building, the water from the
upper storey, under the control of the defendant,
escaped to the lower floor occupied by the plaintiff.
There was evidence of ill-will between the plaintiff
and the defendant. It was found that not only the tap
on the upper floor was left fully open, but the outlet
of the tank was also closed.
There was only one inference that the said act
was done by the defendant, with the wrongful
intention, and hence, the plaintiff was held entitled to
get damages for the same.

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LAW OF TORTS- ELEMENTS IN TORTS
4. Malfeasance, Mis-feasance and non-feasance:
The term ‘Malfeasance’ applies to the
commission of an unlawful act. It is generally
applicable to those unlawful acts, such as trespass,
which are actionable per se and do not require proof
of intention or motive.
The term ‘Misfeasance’ is applicable to
improper performance of some lawful act. E.g. when
there is negligence.
The term ‘Non-feasance’ applies to the
omission to perform some act when there is an
obligation to perform it. Non-feasance of gratuitous
undertaking does not impose liability, but
misfeasance does.

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LAW OF TORTS- ELEMENTS IN TORTS
5. Fault:
There are certain areas where the mental
element is quite irrelevant and the liability arises even
without any wrongful intention or negligence on the
part of the defendant. In such cases, innocence of the
defendant or an honest mistake on his part is no
defence.
There is, however, a sphere of tortious liability which is
known as absolute or more properly strict liability
where the element of fault is conspicuously absent.

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 LAW OF TORTS- PERSONAL CAPACITY
PERSONAL CAPACITY:
Generally, all persons have the capacity to sue and
be sued. But this rule is subject to modification in
respect of certain categories persons.
1. Convict;
2. Alien enemy;
3. Husband and wife;
4. Corporations;
5. Unincorporated Association;
6. Trade Unions;
7. Insolvent;
8. The State;
9. Foreign Sovereign;

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 LAW OF TORTS- PERSONAL CAPACITY
10. Ambassadors;
11. Minor;
12. Lunatic;
13. Independent and Joint Tortfeasors (Composite
Tortfeasors);
14. Persons having Parental or quasi-parental
authority;
15. Persons having judicial or executive authority;
16. Highway authorities.
-------------------------------------------------------------------------

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LAW OF TORTS- PERSONAL CAPACITY
1. Convict:
Convict- Who has been found guilty of
commission of offence and convicted of a crime.
Under the English law, a convicted person,
in spite of his imprisonment, retains all his civil rights
which are not taken away expressly or by necessary
implication.

The Indian law is the same. Convicts are not, by

mere reason of the conviction, deprived of all the
fundamental rights which they otherwise possess. Of
course, the convict is deprived of fundamental freedoms,
like right to move freely through out the territory of India,
or the right to practice a profession.

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LAW OF TORTS- PERSONAL CAPACITY
Case: Smt. Kewal Pati V. State of U.P. –(1995) 3 SCC
600. - A convict was attacked by another convict in Jail
and killed due to failure of Jail authorities to protect him.
In a petition under Article 32 of the Indian Constitution by
the dependants of the deceased, they were awarded Rs.
1,00,000/- as compensation against the State for
violation of the fundamental right of life protected under
Art. 21 of the Constitution.

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LAW OF TORTS- PERSONAL CAPACITY
2. Alien enemy:
Alien enemy- a person of enemy nationality or
a person residing in or carrying on business in
enemy territory, whatever his nationality . He cannot
sue in his own right. An alien enemy residing within
the realm by the express or tacit licence of the
Crown is temporarily free from his enemy character
and can invoke jurisdiction of courts.
It would seem that similar principles apply in
India.
Section 83 of Code of Civil Procedure, 1908,
When aliens may sue— Alien enemies residing in
India with the permission of the Central
Government, and alien friends, may sue in any
Court otherwise competent to try the suit, as if they
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were citizens of India, but alien enemies residing in
India without such permission, or residing in a
foreign country, shall not sue in any such court.
Explanation—Every person residing in a
foreign country, the Government of which is at war
with India and carrying on business in that country
without a licence in that behalf granted by the
Central Government, shall, for the purpose of this
section, be deemed to be an alien enemy residing in
a foreign country.

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3. Husband and wife:
Under Common law, there were serious
anomalies (irregularities) relating to married woman.
She could not sue her husband and the husband
could not sue her for any tort committed by one
against the other.
Under Common law, ‘Marital status made the
husband and wife one person in the eye of law’.
Thus, they were treated as one person in the eye of
law.
But the irregularities have been removed by
subsequent legislation, like Married Women’s
Property Act, 1882, Law Reform (Married Women
and Tortfeasors ) Act 1935.

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In India: Marital status is governed by
personal laws and not by Common law, i.e. personal
laws of Hindus, Budhists, Sikhs, Jains and Muslims.
Marriage under these personal laws does not affect
the capacity of the parties for suing or for being
sued nor does it confer any protection to any of the
spouses for any tortious act committed by one
against the other. As regards other persons, e.g.
Christians, who in respect of the marital status may have
been subject to the Common law and the anomaly to
some extent was removed by the Married Women’s
Property Act, 1874, under which a married woman to
whom the Act applies can sue or be sued alone.

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4. Corporations:
A corporation is an artificial person distinct
from its members. The common features of
corporations are a name, perpetuity of existence,
holding property in its own name and capacity to
sue and be sued. It always acts through its agents,
and servants and as such, its liability is always
vicarious for the acts done by the other persons . It
may be statutory bodies, like SBI, LIC, or companies
created under an Act of the legislature.
Suit by corporation: It can bring the action. But it
cannot bring a suit for torts which are only wrongs
against living persons, like, Assault, False
Imprisonment.

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Suit against corporation: Corporation is liable for
torts committed by its agents or servants to the
same extent as a principle is liable for the torts of his
agent or an employer for the torts of his servant,
when the tort is committed in course of doing an act
which is within the scope of the powers of the
corporation.

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The prevailing view is that a corporation is vicariously
liable for tortious acts of its servants, even though it is
ultra-vires provided it is done in the course of employment
[WINFIELD & JOLOWICZ- Tort, 12th edn. P. 692]. But the
corporation may not be liable, if the appointment of the
servant is itself ultra-vires.
Case: Campbell V. Paddington Corporation - (1911) 1 K. B.
869.
Facts: A stand was erected in highway in pursuance of a
resolution passed by the Borough Council [ Borough -town
with municipal corporation] to enable the members of the
council and their friends to view the funeral procession of
Edward VII, which constituted a public nuisance and
which the corporation had no power to erect. In a suit by a
person who suffered special damage, the corporation was
held liable as the act was authorized by its council .

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Thus, a corporation will not escape the liability in tort
merely because the act done is ‘ ultra-vires’ of the
corporation and, therefore, it can be made liable both
for ‘ultra-vires’ and ‘intra-vires’ torts.
In India, it seems to be clear that there is consensus of
authority for holding that a corporation cannot be
exempted from liability in respect of torts brought
about at its instance on the ground that the act was
not intra-vires the corporation.
Case: Tiruveriamutha Pillai V. Municipal Council - AIR
1961 Mad. 230.
Facts: The plaintiff’s dog was killed by the employee of a
municipal council in the course of the discharge of his
function of killing stray dogs in the municipal town
expressly authorized by the council.
In the an action by the plaintiff for damages

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against the council for the loss of the dog, it was
held that the council was liable for the unlawful act
of having brought about the destruction of the
plaintiff's dog and the fact that the council acted in
excess of its statutory powers was not a defence to
the action but was only an aggravating
circumstances.
Foreign corporation: [i.e. a corporation created by the
law of any foreign country]. It may sue or be
sued for a tort like any other corporation . A
multinational corporation having subsidiaries in
different countries and owning controlling shares in
the subsidiaries may be held liable for a tort
committed by a subsidiary company.

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It is on this basis, Union Carbide Corporation
(UCC), a multinational registered in USA, was held
liable for the Bhopal Gas Disaster which resulted
from leakage of poisonous gas from a plant owned
by Union Carbide India Ltd. (UCIL) which is a
subsidiary of UCC.
------------------------------------------------------------------------
Idols: The liability of the estate of an idol for wrongs
committed by its Shebait ( the person in charge of
the idol) is analogous to the liability of a corporation.

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5. Unincorporated Associations:
Unincorporated associations have no
corporate existence and are not legal persons.
Generally speaking they cannot sue and be sued in
their name. Any member or officer of such an
association has to be sued personally for trot
committed by him or authorized by him.
The provisions of Order I Rule 8 of the Code
of Civil Procedure, 1908 may be availed of if all the
members or a number of them have to sued [ this
Rule states that ‘One
‘ person may sue or defend on
behalf of all in same interest’- Representative suit].
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A partnership firm, though not a legal entity,
can sue or be sued in the firm name under Order 30
of the Code of Civil Procedure, 1908.
An association, which is registered as a
society under the Society Registration Act, 1860 ,
can, as provided in the section 6 of the said Act, sue
or be sued in the name of its President, Chairman or
Principal Secretary, etc. as may be determined by
its rules or regulations or by a resolution of the
Governing Body, when there is no provision on that
point in the rules or regulations.
[Section-6.
Section- Suits by and against societies.− Every
society registered under this Act may sue or be
sued in the name of the president, chairman, or
principal secretary, or trustees, as shall be
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determined by the rules and regulations of the
society, and, in default of such determination, in a
the name of such person as shall be appointed by
the governing body for the occasion:
Provided that it shall be competent for any
person having a claim or demand against the
society, to sue the president or chairman, or
principal secretary or the trustees thereof, if on
application to the governing body some other officer
or person be not nominated to be the defendant.]

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6. Trade Union:
It is an organization of workmen formed for
mutual protection and assistance and for the
purpose of improving their condition in the
employment.
English law: The English law in the context of Trade
Unions gave recognition to a theory that there
may exist a legal entity without any corporate
existence. It was held that a registered Trade
Union, though not a corporate body, was a legal
entity and could be sued in tort for the wrongful
acts of its officers [Taft Vale Ry. V. Amalgamated
Society of Railway Servants-(1901)AC 426 ] and
also it was held that a registered Trade Union has
right to sue.

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Indian Law: Section 13 of the Trade Unions Act,
1926 expressly provides that every registered Trade
Union shall be a body corporate with all attributes of a
legal personality.
Section 18 of the Act, enacts that no suit shall lie against
a registered Trade Union, its members or officers in
respect of any act done in contemplation or
furtherance of a trade dispute to which the member of
the trade union was a party on the ground only that
such act induces some other person to break a
contract of employment, or that it is an interference
with the trade, business or employment of some other
person or with the right of some other person to
dispose of his capital or labour as he wills.

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7. Insolvent:
Insolvent is one who has been declared as insolvent by the
competent court. An insolvent may be sued for a tort committed
by him either before or during insolvency and if a decree is
obtained against him, the amount awarded is a debt provable in
insolvency.
As regards torts committed against an insolvent, a distinction
is to be drawn between torts to the person and torts to the
property.
A right of action in respect of a tort resulting in injury exclusively
to the insolvent's property passes to the Official Assignee or
Receiver for the benefit of his creditors.
But a right of action in respect of a tort exclusively to the
person, reputation or feelings of the insolvent such as an
assault or defamation, seduction of a servant remains with the
insolvent and the Official Assignee or Receiver cannot intercept
the proceeds so far as they are required for the maintenance of
the insolvent of his family.

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8. The State:
English Law:
It is an ancient and fundamental principle of the English
law that the ‘King can do no wrong’. So the crown was
not liable in tort at Common law for wrong committed by
its servants in the course of employment not even for
wrongs expressly authorized by it.
But subsequently, there was a change in the law.
The Crown Proceedings Act, 1947 came into force.
Although the Crown Proceedings Act preserves the
immunity of the sovereign in person and contains
savings in respect of the Crown’s prerogative and
statutory powers, the effect of the Act in other respect,
speaking generally, is to abolish the immunity of the
Crown in trot and to

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equate the Crown with a private citizen in matters of
tortious liability.
The Crown is now vicariously liable for torts
committed by its servants in the course of their
employment if committed in circumstances which
would render a private employer liable.
Case: Home Office V. Dorset Yacht Co.- (1970) 2 All E R
294 (HL).-
The Crown was held liable for the damages
caused by runaway borstal trainees who escaped
because of the negligence of the borstal officers in the
exercise of their statutory function to control the
trainees.

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In India: The English Common law principle has
never been applied in India. The Crown assumed
the sovereignty of the British India by the Govt. of
India Act, 1858. The section 65 of the Act provided
that “All persons and bodies politic shall and may
have and take the same suits, remedies and
proceedings, legal and equitable, against the
Secretary of State for India as they could have
done against the said company”.

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Thus, under section 65, proceedings against
Secretary of State for India were permitted. This
provision was continued by the succeeding Govt. of
India Acts [Section 32 of 1915 and Section 176(1) of
1935] and is also continued by Art. 300(1) of the
Constitution of India.
Art. 300(1) : “ The Government of India may
sue or be sued by the name of the Union of India
and the Government of a State may sue or be sued
by the name of the State and may, subject to any
provisions which may be made by Act of Parliament
or of the Legislature of such State enacted by virtue
of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like
cases as the Dominion of India and the
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corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution
had not been Enacted”.
But the President and the Governors of States
have personal immunity and they are not answerable to
any court under Art. 361 of the Constitution.
The Union of India and States are juristic persons
and they can sue and be sued. The point as to how far
the State was liable in tort first directly arose before the
Supreme Court in the following case.
Case: State of Rajasthan V. Vidyawati- AIR 1962 SC 933.
In this case, the claim for damages was made by the
dependants of a person who died in an accident caused
by the negligence of the driver of a jeep maintained by
the Govt. for official use of the

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Collector of Udaipur while it was being brought back
from the work-shop after repairs.
The Rajasthan High Court took the view that
the State was liable for ‘the State is in no better
position in so far as it supplies cars and keeps
drivers for its civil service’.
The Supreme Court endorsed the view taken
by the High Court.

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Case: Kasturilal Ralia Ram Jain V. State of U.P. - AIR
1965 SC 1039.
Facts: A partner of a firm of jewellers of Amruitsar went
to Meerut for selling gold and silver. He was taken
into custody at Meerut by police constables on the
suspicion of possessing stolen property. He was
kept in police lock-up and gold and silver recovered
from him on search were kept in the custody of the
police in the police Malkhana. He was next day
released and sometime later silver seized was
returned. The gold could not be returned to him as
the Head-Constable in-charge of the Malkhana
misappropriated it and fled to Pakistan.
The suit was filed against the State of U.P. for
return of the gold or in the alternative compensation.

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It was found that the police officers had failed
to follow the U.P. Police Regulations in taking care
of the gold.
The Supreme Court held the State was not
liable on the view that the tort was committed by the
police officers in the exercise of delegated sovereign
powers.

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Case: Smt. Basavva kom Dyamagouda Patil V. State
of Mysore- AIR 1977 SC 1749.
Facts: Certain articles seized by the police were
produced before a Magistrate who directed the Sub-
Inspector to keep them with him in safe custody to
get them verified and valued by a goldsmith. The
articles were lost while they were kept in the police
guard-room.
In a proceeding taken [under section 517 of
Cr.P.C. 1898], the Supreme Court held that when
there is no prima facie defence made out that the
State or its officers had taken due care and caution
to protect the property, the court can order the State
to pay the value of the property to the owner . The
court also observed that as the seizure of property
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by the police amounts to a clear entrustment of the
property to a Govt. servant, the idea is that the
property should be restored to the original owner
after the necessity to retain it ceases.
Case: Rudul Shah V. State of Bihar- AIR 1983 SC
1086.
Facts: It arose on a petition under Art. 32 of the
Constitution complaining prolonged detention of the
petitioner even after his acquittal, the Supreme
Court directed the State to pay Rs. 30,000 as
interim measure without precluding the petitioner
from bringing a suit to recover further damages.

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In many cases Supreme Court did not refer to the
doctrine of sovereign immunity .Kasturilal’s case,
even if not overruled, can be distinguished on the
ground that it did not consider the nature of liability
of the State when there is deprivation of a
fundamental right. The liability of the State to pay
compensation for deprivation of fundamental right of
life and personal liberty (or any other fundamental
right for that matter) is a new liability in public law
created by the Constitution and

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What are traditional sovereign functions of the State was
considered by the Supreme Court in State of Bombay V.
Hospital Mazdoor Sabha- AIR 1960 SC 610 and Nagpur
Corporation V. Its employees- AIR 1960 SC 675. [Court
referred Lord Watson’s observation in Coomber V.
Justice of Berks-(1883) 9 AC 61]
These cases show that traditional functions are-
1. making of laws;
2. the administration of justice;
3. the maintenance of order;
4. the repression of crime;
5. carrying on of war;
6.the making of treaties of peace and other consequential
functions

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Thus, socio-economic and welfare activities
undertaken by a modern State are not covered by
the traditional sovereign functions.
Although carrying on of war is sovereign
function, in all cases State cannot take the benefit of
immunity.
Case: Pushpa Thakur V. Union of India- 1984 ACJ
559.

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 LAW OF TORTS- PERSONAL CAPACITY
9. Foreign Sovereign:
English law:
Earlier view- English courts had no jurisdiction over an
independent foreign sovereign personally and the
properties of a foreign sovereign State unless they
submitted to the jurisdiction of the court. No court
can entertain an action against a foreign sovereign
for anything done or omitted to be done by him in
his public capacity as representative of the nation of
which he is the head.

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The Court of Appeal [in the case of Trendtex Trading
Corporation Ltd. V. Central Bank of Nigeria- (1977) 1
All E R 881] under the leadership of Lord Denning
applied the restrictive theory to actions in personam
holding that there is no ground for granting immunity if
the dispute concerns commercial transactions of a
foreign State.
Finally, the House of Lords in the Congreso Del
Partido- (1983) AC 244 (HL) approved the restrictive
theory requiring the court to analyse the nature of the
obligation and breach in question to decide whether it
pertained to private law or was a Governmental
character.

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Parliament enacted State Immunity Act 1978
which applies to cause of action arising after 21-11-
1978. Under the Act, immunity covers proceedings
which relate to anything done in the exercise of
‘Sovereign Authority’. Trading transactions are
not protected.
But what is more important is that immunity
does not apply to –
(a) an action or omission in U.K. causing
death or personal injury and,
(b) obligations arising out of the ownership,
possession or use of property in U.K.

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But the Act does not apply to proceedings
relating to anything done by or in relation to the armed
forces of a State while present in the United Kingdom.
The immunity relating to armed forces covered by this
exception is decided in accordance with the common
relating to State immunity.
Case: Littrell Vs. United States of America- (1994) 4 All E
R 203.
Facts: A member of the US Air Force sustained injury
through treatment by US medical personnel at a US
base hospital in England and he brought a suit for
damages against United States’ government in
England.
The suit was dismissed on the ground of State
immunity.

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LAW OF TORTS- PERSONAL CAPACITY
Where the immunity applies, it covers an official of
the State in respect of acts performed by him in an
official capacity.
The State immunity is unaffected by the European
convention for the Protection of Human Rights and
Fundamental Freedoms which is enforced in the U.K.
by the Human Rights Act, 1998 from 2nd Oct. 2000.
But the Court of Appeal in a recent unanimous
decision [Jones V. Minister of Interior (Kingdom of
Saudi Arabia)- (2005) 2 WLR 808] held that in a case
where a systematic torture was carried out in a
State’s prison by its officials, the immunity from civil

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proceedings for compensation for acts of torture will
apply only to the State and not to its officials.
In India:
According to section 86, Code of Civil
Procedure, a foreign State cannot be sued except
with the consent of the Central Government certified
in writing by a Secretary to that Govt.
But a tenant of immoveable property can sue
without such consent the foreign State from whom
he holds or claims to hold the property.
Consent to sue cannot be given unless it
appears to the Central Govt. that the foreign State-
(a) has instituted a suit in the court against a person
desiring to sue it; or
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 LAW OF TORTS- PERSONAL CAPACITY
(b) by itself or another trades within the local limits of
the jurisdiction of the court; or
(c) is in possession of immoveable property situate
within those limits and is to be sued with reference
to such property or for money charged thereon; or
(d) has expressly or impliedly waived the privilege
accorded to it.
Under this section, immunity also covers
foreign corporations which are State owned and are
like govt. departments even though they carry on
commercial or trading activities [Veb Deautfracht
Seereederei Rostock (D.S.P. Lines) a dept. of the
German Democratic Republic V. New Central Jute
Mills Co. Ltd.-AIR 1994 SC 516].

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 LAW OF TORTS- PERSONAL CAPACITY
The Supreme Court has ruled that consent to sue
could, generally, be granted if conditions mentioned
in the section are satisfied [Harbhan Singh Dhalla V.
Union of India -AIR 1987 SC 9].
10. Ambassadors:
In India, any Ambassador or envoy of a foreign
State, any Commissioner of a Commonwealth
country and any such member of their staff, as the
Central Govt. may specify, cannot be sued except
with the consent of the Central Govt. certified in
writing by a Secretary to the Govt. The provisions of
section 86 C. P.C. apply in this respect as they
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 LAW OF TORTS- PERSONAL CAPACITY
apply in relation to a foreign State and permission to
sue can be granted on grounds on which a foreign
State can be allowed to be sued.
The law on the privileges and immunities of diplomatic
representatives in the U. K. is contained in the
Diplomatic Privileges Act, 1964, which gives the force
of law to the relevant provisions of the Vienna
Convention on Diplomatic Relations 1961.
11. Minor:
Age of majority is 18 years. Criminal law confers
immunity on minors to some extent.
Child below seven years- not liable- section 82 I. P. C.
Child between seven to twelve years- not liable unless
he has attained sufficient maturity to judge

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 LAW OF TORTS- PERSONAL CAPACITY
the nature and consequence of his conduct on that
occasion- section 83 I. P.C.
As regards contract, minor is incompetent and
an agreement entered into with him is void.
The law of torts makes no special provision
for minors.
Case: Union Carbide Corporation V. Union of India -
AIR 1992 SC 248: The Supreme Court referred to
the English Act and held that those who were yet
unborn at the time of the Bhopal Gas Leak Disaster
and who are able to show that their congenital
defects are traceable to the toxicity from the gas
leak inherited or derived congenitally will be entitled
to be compensated.

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No protection but age taken into account:
A minor enjoys no special protection in a suit filed against
him for a tortious act. But when any mental element, such as
intention or negligence on his part is relevant, then his age
has to be taken into account for deciding his liability.
No liability in tort from void agreement:
A minor’s agreement is void even if he fraudulently
represents himself to be of full age and so he cannot be
made to repay a loan so obtained by changing the form of
action to one for deceit under tort.
Case: Leslie (R) Ltd. V. Sheill- (1914) 3 KB 607.
Case: Case: Johnson Vs. Pye- (1665).
Case: Jennings V. Rundall- (1799)
Case: Burnard V. Haggis-(1863).

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In India, section 33 of Specific Relief Act, 1963 is
applicable.
Liability of parents for children’s torts:
As a general rule, a parent or a guardian cannot
be made liable for the torts of the minor. But there are
two exceptions to this rule.
1. When the child is father’s servant or agent, the father is
vicariously liable. In such case, the father is liable for
son’s torts, not as his father, but in the capacity of an
employer or principal.
Case: Gibson V. O’ Keeney- 1928- NI 66.
2. A father may also be liable for his own personal
negligence in allowing his child an opportunity of
committing a wrong.
Case: Bebee V. Sales- (1916) 32 T.L.R. 413-

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LAW OF TORTS- PERSONAL CAPACITY
12. Lunatic:
In criminal law, insanity is a good defence
[section 84 I. P.C.- Act of a person of unsound
mind.--Nothing is an offence which is done by a
person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either
wrong or contrary to law].
Such wide exemption is not available in the
law of torts, the object of which is compensation and
not punishment.
But it may be generally stated that when the
insanity is of such a grave nature that the defendant
was unable to know the nature of his act, he would

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not be liable in tort. Because, the act in such a case
will no be a voluntary act which is necessary for
constituting a tort [Tindale V. Tindale- (1950) 4 DLR
263].
But in cases where no specific intent or malice
is an ingredient of the tort, the defendant would be
liable if he knew the nature of his act, although,
because of unsoundness of mind, he was unable to
know that what he was doing was wrong or contrary
to law. Case: Morris V. Marsden- (1952) 1 All E R
925.

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13. Independent and Joint Tortfeasors (Composite
Tortfeasors):
When two or more persons commit same tort
against the same plaintiff, they may be either
independent tortfeasors of joint tortfeasors.
Independent tortfeasors: When the act of two or more
persons, acting independently, concur to produce a
single damage, they are known as independent
tortfeasors. There is no concerted action on the part
of independent tortfeasors.
Example: Two motorists driving negligently and
coming from the opposite directions collide and a
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LAW OF TORTS- PERSONAL CAPACITY
pedestrian is crushed between two cars, these
motorists are independent tortfeasors.
The liability of the independent tortfeasors
was not joint but only ‘several’ and therefore, there
were as many causes of actions as the number of
tortfeasors. It was further held that since they were
severally liable an action against one of them was
no bar to an action against the other.

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Joint Tortfeasors:
Two or more persons are said to be joint
tortfeasors, when the wrongful act, which has
resulted in a single damage, was done by them, not
independently of one another, but in furtherance of a
common design. In other words, all persons, who
aid or counsel or direct or join in the committal of a
wrongful act, are joint tortfeasors.
When two or more persons are engaged in a
common pursuit and one of them in the course of
and in furtherance of that commits a tort, both or all
of them will be considered as joint-tortfeasors and
liable as such.
Case: Brook V. Bool-(1928) 2 K.B. 578.
Facts: A and B entered Z’s premises to search for an
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escape of gas. Each one of them, in turn, applied
naked light to the gas pipe. A’s application resulted
in an explosion causing damage to Z’s premises. In
this case, even though the act of A alone had
caused the explosion, but both A and B were
considered to be joint-tortfeasors and thus held
liable for the damage.
Persons are not joint-tortfeasors merely
because their independent wrongful acts have
resulted in one damnum.
To constitute a joint liability, the act
complained of must be joint and not separate.
The joint liability arises under following
circumstances:

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 LAW OF TORTS- PERSONAL CAPACITY
1. Vicarious liability: Liability for wrongs committed by
others.
a) Agency: When one person employs another to
do an act which turns out to be a tort. If an agent
does a wrongful act in the scope of his employment
for his principal, the principal can be made liable
alongwith the agent as a joint-tortfeasor.
b) Master and Servant: When servant commits tort
in the course of employment of his master, both are
liable as joint-tortfeasors.
c) Partners in a partnership firm:
2. Joint-action: Where two or more persons combine
together to commit an act which amounts to a tort.

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The reasons for distinctions between joint and
independent tortfeasors or Principles in connection with
the liability for a joint act:
1. In case of joint-tortfeasors, there was considered to be a
single cause of action and therefore, if a judgement had
been obtained against one of the joint tortfeasors, the
cause of action came to an end. If plaintiff’s claim still
remained unsatisfied, he could not bring an action
against the remaining joint tortfeasors. In the case of
independent tortfeasors, there were considered to be as
many causes of action as the number of independent
tortfeasors. Therefore, an action against one of such
tortfeasors was no bar to an action against he other
tortfeasors.
But now in England, by legislation, the position of joint
tortfeasors has been brought at par with the
independent tortfeasors.

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The legislation is “Law Reform (Married Woman &
Tortfeasors) Act 1935 and Civil Liability Contribution
Act 1978.
Now the action against one or some of the joint
tortfeasors is no bar to an action against the
remaining of them. In this respect, in India also, the
position appears to be the same as brought about by
the legislation in England [Nawal Kishore V.
Rameshwar-AIR 1955 All 594].
2. Joint tortfeasors are jointly and severally liable for
the whole damage resulting from the tort and they
maybe sued jointly and severally. If sued jointly, the
damage may be levied from all or either of them. In
assessing damages against joint tortfeasors, one

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set of damages will be fixed and they must be
assessed according to the aggregate amount of the
injury resulting from the common act.
Case: Arneil V. Paterson- (1931) AC 560.
Facts: Two dogs, belonging to different owners, acting
concert, attacked a flock of sheep and injured
several. In an action for damages brought against
the owners of the dogs, one of them put in a
defence claiming that he was liable for only one-half
of the damage.
It was held that in law each of the dogs
occasioned the whole of the damage as the result of
the two dogs acting together and that consequently,
each owner was responsible for the whole.

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3. A release granted to one or more of the joint
tortfeasors operates as a discharge of the others
[Under the Common Law as developed after Brown
V. Wooton- 1605]. The reason being that the cause
of action, which is one and indivisible, having been
released, all persons otherwise liable therefor are
consequently released [Duck V. Mayeu- (1892) 2
QB 511].
But a mere agreement not to sue one of them
is no bar to an action against others [Kamala Prasad
Sukul v. Kishori Mohan Pramanik- (1927) ILR 55 Cal
666].

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The Supreme Court of India has not accepted
the Common law as developed after Brown V.
Wooton and in the following case has held that in
order to release all the joint tortfeasors, the plaintiff
must have received full satisfaction or which the law
must consider as such from a tortfeasor before the
other joint tortfeasors can rely on accord and
satisfaction and that what is full satisfaction will
depend on the facts of each case.
Case: Khushro S. Gandhi V. N. A. Guzdar- AIR 1970
Sc 1468.
Facts: A suit was filed against several defendants as
joint tortfeasors for defamation. One of the
defendants apologized to the plaintiff who accepted
the apology. A compromise petition was filed for
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disposing of the suit against that defendant on that
basis and a decree was passed in terms of the
compromise. The remaining defendants then raised
the plea that the release of the defendant who had
apologized extinguished the cause of action against
all as they were joint tortfeasors.
The Supreme Court negatived this defence
holding that the decree following the apology of one
of the defendants could not be said to be full
satisfaction of the claim for the tort committed by the
remaining defendants.

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Contribution between wrongdoers:
The liability of the joint tortfeasors is joint and several.
The plaintiff has, therefore, a right, if he so likes, to make
only one of the joint tortfeasors to meet the whole of his
claim. The question which generally arises is that if one
of the several tortfeasors has been made to pay, not
only for his own share of responsibility but for others as
well how far he can ask other responsible with him to
contribute for their share of responsibility.
Now a tortfeasor may recover contribution from any
other tortfeasor who is, or who if sued, would have been
liable in respect of the same damage, whether as a joint
tortfeasor or otherwise. But no person shall be entitled to
recover contribution from

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any person entitled to be indemnified by him in
respect of the liability in respect of which the
contribution is sought.
It may be noted that the contribution can be
demanded only from that tortfeasor, who is liable in
respect of the plaintiff’s damage.
Thus, if X and Y jointly commit a tort against A
and if X has been made to pay for the whole amount
of the loss to A, X can claim contribution from Y
provided that the circumstances are such that X and
Y both were answerable to A for that wrong. If, in
this illustration, for some reason, Y could not have
been made liable to A, X cannot demand any
contribution from Y.

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Indemnity:
There may be situations where the joint
tortfeasor, who has been made to pay for the whole
of the loss, may not be guilty at all and some other
joint tortfeasor may be solely to blame for the
wrongful act. In such a case, the guilty joint
tortfeasor must fully compensate that one who has
actually paid compensation or in other words, one
joint tortfeasor must indemnity the other.
Case: Admson V. Jarvis-
Facts: The plaintiff, an auctioneer, sold certain cattle
on the instruction of the defendant. It subsequently
turned out that the livestock did not belong to the
defendant, but to another person (true owner), who
made the auctioneer liable and the auctioneer in his
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turn sued the defendant for indemnity for the loss he
had thus suffered by acting on the defendant’s
directions.
The auctioneer was held entitled to be indemnified by
the defendant for the loss caused to him.
In cases of vicarious liabilities, if one who is not at fault,
has been made to pay for wrong of the other, he can
claim indemnity from the person for whose wrong he
had been made answerable.
Example: If for a servant’s tort committed in the course of
employment, a master had to pay compensation, he
can claim indemnity from the servant.
Similarly, the agent must indemnify his principal, if for
the wrong of the former, the latter had to pay
compensation.

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14. Persons having Parental or quasi-parental
authority:
Parents or persons in loco parentis [i.e. in the
place of a parent] may, for the purpose of correcting
what is evil in the child, inflict moderate and
reasonable corporal punishment.
15. Persons having judicial or executive authority:
Judges who are appointed to administer the
law should be permitted to administer it under the
protection of the law independently and freely
without fear and favour. The object of the protection
is to enable the judicial officers to administer the law
without any fear of unwarranted litigation against
them.

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Indian Law:
The Judicial Officers Protection Act, 1850 :
Under this Act, no Judge, Magistrate , Justice of the
Peace, Collector or other person acting judicially, can
be sued in any court for any act done by him in the
discharge of his judicial duty, whether or not within the
limits of his jurisdiction, provided that he, at the time, in
goodfaith, believed himself to have jurisdiction to do
the act complained of.
Similarly, no officer of any court or other person bound
to execute the lawful warrants or orders of any such
Judge, Magistrate, Justice of the Peace, Collector or
other person acting judicially, can be sued in any court
for the execution of any warrant or order, which he
would be bound to execute, if within the jurisdiction of
the person issuing the same.
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The Judges (Protection) Act, 1985:
This Act has been enacted by Parliament for
securing additional protection for judges and others
acting judicially. Section 3 of the Act provides that
“no court shall entertain or continue any civil or
criminal proceeding against any person who is or
was a judge for any act, thing or word committed,
done or spoken by him, when, or in the course of
acting or purporting to act in the discharge of his
official or judicial duty or function .
The term ‘judge’ is very widely defined to mean “not
only every person who is officially designated as a
judge, but also every person- (a) who is empowered
by law to give in any legal proceeding a definitive
judgement or a judgement which, if not

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appealed against, would be definitive or a
judgement which, if confirmed by some other
authority, would be definitive; or
(b) Who is one of a body of persons which body of
persons is empowered by law to give such
judgement as is referred to in clause (a);

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Executive authority or Executive acts :
Generally, the executive govt. and executives officers
do not enjoy any protection except that conferred by
legislative enactments. The State and its officers are
not liable when the wrongful acts falls within the
perview of act of Sate. State is also vicariously liable
except in case of traditional sovereign functions.
Sometimes public servants are not liable for acts done
by them in the exercise of their duties, e.g. Subject to
the above, the executive officers are always liable for
torts committed by them or authorized by them .
Administrative bodies or authorities which are distinct
from Courts, Tribunals and officers acting judicially, will
not have the protection of the Judicial Officers’
(Protection) Act.

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Acts of governing body: Expulsion of member from
Club, Association or Professional Organization,
when governing body acts in bad faith or in breach
of the rules of natural justice, may give rise to a
claim for damages, but such an action will be based
on contract and not in tort. If expulsion is according
to rules, though unfair and unjust, and acted in good
faith, then there is no remedy.
16. Highway Authorities:
Under Common Law, public bodies charged
with the duty of keeping public roads and bridges in
repair and liable to an indictment for breach of this
duty, were nevertheless not liable to an action for
damages at the suit of a person who has suffered
injury from their failure to the keep roads and
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bridges in proper repair. But now under Highways
Act, 1980, an action lies against the Highway
Authority for damage due to non-repair. There is a
statutory obligation on the highway authority to
maintain the highway. However, the authority can
plead as defence that it had taken such care as in all
the circumstances was reasonably required to
secure that the part of the highway in question was
not dangerous for traffic.
Under the Indian law, the duty to repair and maintain
the highway laid on a local authority or a
Government is governed by statutory enactments.
The question whether in a particular case a suit lies
for damage due to non-repair would depend upon
the construction of the relevant statutory provision
and not on any principle of the Common law and
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prima facie there is no reason to deny liability unless
it is expressly or by necessary implication negatived
by the statute.
If Indian statute is silent on any matter, rules
of English law as now contained in the Highways
Act and not the rules of Common law, may be
considered and applied, because, the Act is
consistent with the principles justice, equity and
good conscience.
In a case, the Highways Dept. of State of
Tamil Nadu was held liable by the Supreme Court
for negligence, when a public transport vehicle
plunged into a river on collapse of culvert on the
highway [S. Vedantacharya V. Highway Dept. of
South Arcot- (1987) 3 SCC 400].
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