“TORTS & CONSUMER PROTECTIONAL LAWS”

(CODE: K-103)

Unit I: Definition, Nature and Characteristics of Tort, Damnum Sine Injuria Injuria Sine Damnum Tort and Crime, Tort and Contract, Who can sue and who can be sued.

SYNOPSIS

INTRODUCTION

a. Meaning

Latin term –Tortum

French – Wrong

Roman law – Delict

b. Definition

According to Ratan Lal

According to Dr. Winfield’

According to FRASER

According to Salmond

c. Development of law of Torts

England

Introduction

Tort – The birth place of the law of Torts in England.

Tort – was first reported in Boulton V. Hardy (1597) Case in England.

India

d. Essentials elements of a tort

o Act or omission

o Legal damage

Injuria sine Damnum (Meaning)

Damnum sine injuria (Meaning)

o Legal remedy

Ubi jus ibi remedium “(there is no wrong without remedy)

e. Difference between Torts and crime

f. Difference between Torts and breach of contract

INTRODUCTION

The term “Tort” has been derived from the Latin term “Tortum” which means to twist? It

means Twisted, crooked, unlawful, or a wrongful act rather than an act which is straight or

lawful. Tort May be defined as a “Civil Wrong” which is repressible by an action for

unliquidated Damages and which is other than a mere breach of contract or breach of trust”

Tort is a civil Wrong as opposed to a criminal wrong.

Meaning

The English Term ‘Tort’ has been derived from the Latin term “Tortum” which means ‘to

twist. The same term has been used in French as “Wrong. And the same term has been used

in Roman law As “Delict’. The Law imposes a duty to respect the legal rights vested in the

members of the society and the Person” making a breach of that duty is said to have done the

wrongful act .As ‘Crime’ is a Wrongful Act. Which results from the breach of a duty

recognized by criminal law? A ‘breach of Contract’ is the non-performance of a duty

undertaken by a Party to a Contract. ‘Tort’ is a breach of duty recognized under the law of

Torts.

For example – violation of a duty to injure the reputation of someone else results in the tort

of defamation violation of a duty not to interfere with the possession of land of another

person result in the tort of trespass to land and the violation of a duty not to defraud another

results in the tort of deceit.

Definitions

The various eminent jurists defined the term tort in a different manner

According to Ratan Lal

“A tort is a civil wrong independent of Contract, for which the appropriate remedy is an

action for damages.”

According to Dr. Winfield’

“Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is

towards persons generally and its breach is repressible by an action for unliquidated

damages.

According to Fraser

“It is an infringement of a right in rem of a private individual giving a right of compensation

at the suit of the injured party.

According to Salmond

“It 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 a trust or other merely

equitable obligation.

Definitions

In General Sense

We may define tort as a civil wrong which is repressible by an action for unliquidated

damages and which is other than a mere breach of contract or breach of trust.

Thus, it may be observed that:

a. Tort is a civil wrong;

b. This civil wrong is other than a mere breach of contract or breach of trust;

c. This wrong is repressible by an action for unliquidated damages.

a. Tort is a Civil Wrong

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is

different from a criminal wrong. In the case of a 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. The plaintiff is compensated by the

defendant for the injury caused to him by the defendant. In the case of a criminal

wrong, on the other hand, the criminal proceedings against the accused are brought

by the State. Both the civil and the criminal remedies would concurrently be

available. There would be civil action requiring the defendant to pay compensation as

well as a criminal action awarding punishment to the wrongdoer.

b. Tort is other than a mere breach of contract or breach of trust

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we

find that the only wrong is a mere breach of contract or breach of trust, it would not

be considered to be a tort. If a person agrees to purchase a radio set and thereafter

does not fulfill his obligation, the wrong will be a mere breach of contract. It is only

by the process of elimination that we may be able to know whether the wrong is a tort

or not.

It may be noted that there is a possibility that the same act may amount to two or more

civil wrongs, one of which may be a tort.

For example, if A delivers his horse to B for safe custody for a week and B allows the

horse to die of starvation, B's act amounts to two wrongs-breaches of contract of

bailment and commission of tort of negligence.

c. Tort is repressible by an action for unliquidated damages

Damage is the most important remedy for a tort. After wrong has been committed, it

is the money compensation which may satisfy the injured party. After the commission

of the wrong, it is generally not possible to undo the harm which has already been

caused.

For example, the reputation of a person has been injured; the original position

cannot be restored back. The only thing which can be done in such a case is to see

what is the money equivalent to the harm by way of defamation and the sum so arrive

at is asked to be paid by the defendant to the plaintiff. There are other remedies also

which could be available when the tort committed.' It is also just possible that

sometimes the other remedy may be more effective than the remedy by way of

damage.

For example, when a continuing wrong like nuisance is being committee the plaintiff

may be more interested in the remedy by way of 'injunction' to stop the continuance of

nuisance rather than claim' compensation from time to time, 'if the nuisance is

allowed to be continued.

Damages in the case of a tort are unliquidated. It is this fact which enables us to

distinguish tort from other civil wrongs, like breach of contract or breach of trust,

where the damages may be liquidated. Liquidated damages mean such compensation

which has been previously determined or agreed to by the parties.

Is it Law of Tort or Law of Torts

Salmond had posed the question, "Does the law of Torts consist of fundamental general

principle that it is wrongful to cause harm to other persons in the absence of some specific

ground of justification or excuse, or does it consist of a number of specific rules prohibiting

certain kind of harmful activity, and leaving all the residue outside the sphere of legal

responsibility.

i. 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;

ii. Is it the Law of Torts, consisting only of a number of specific wrongs beyond which

the liability under this branch of law cannot arise?

Winfield 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.

Salmond, on the other hand, preferred the second alternative and for him, -there is no Law of

Tort, but there is Law of Torts. The liability under this branch of law arises only when the

wrong is covered by anyone or the other nominates torts. There is no general principle of

liability and if the plaintiff can place his wrong in anyone 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.

Winfield's book on the subject is entitled 'Law of Tort,' whereas Salmond's book is entitled

‘Law of Torts’.

Development of Law of Torts

In England-

INTRODUCTION

The law of Torts originated about same five hundred years ago in England. The Term “Tort”

was first reported in “Boulton V. Hardy (1597) Crown Eliz. 547, 548 Case. Still this Branch

of Law is in a developing stage. It is the creation of the judicial decisions in various occasions

suited to Particular cases according to those Case-Laws.

“Ubi Jus ibi Remedium

(There is no wrong without a remedy) is the basis of the Law of Torts in England. This is a

Latin Maxim. The meaning of the legal terms of this legal maxim is –

Ubi – There

Jus - The legal authority to do or to demand something.

ibi - without

Remedium – the right of action the means has given by law for the recovery of assertion of a

right. The Word ‘remedium’ is also used a Synonym ‘actio.

This legal Maxim implie equity, justice and good conscience. According to this legal

Maxim. The common law gives a right or prohibits an injury and also gives an appropriate

remedy to the aggrieved. This legal maxim has a more extended signification in the Law of

Torts.

In India

The birth place of the Law of Torts in England. It is now recognized as a separate branch of

Law. Comparing with England and other developed countries. India is backward in Law at

Torts. We have to accept this bare truth. The reasons for this back wardness are Poverty,

illiteracy. The spirit of Toleration. Lack of consciousness about one’s right, etc. The Legal

education is not sufficiently spread in India. The delay in Court Proceedings, Costs of the

Suits, etc. is the added reasons for the non-development of the Law of Torts in India.

There are several public nuisances and Negligence’s in India. Water Pollution, air

Pollution, etc. cause harm and injury to the Public. The Factories release the dangerous

affluent and gases into the environment causing ill-health to the people, flora and fauna. The

Traffic Pollution, land Pollution, noise pollution, water Pollution, air Pollution etc. have

been growing day-by-day in India due to urbanization and industrialization.

ESSENTIAL OF TORTS

Act or omission Legal Damages Legal Remedy

Injuria sine damno Damnum sine injuria

Ashby. V White Gloucester GrammerBhim Singh V. State of J & K School Case

a. Act or Omission

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. Either a

positive wrongful act or an omission which is illegally made will make a person

liable.

For example, A commits the act of trespass or publishes a statement defaming

another person, or wrongfully detains another person, he can be made liable for

trespass, defamation or false imprisonment, when there is a legal duty to do some act

and a person fails to perform that duty, he can be made liable for such omission. For

example, if a corporation, which maintains a public park, fails to put proper fencing

to keep the children away from a poisonous tree and a child plucks and eats the fruits

of the poisonous tree and dies, the Corporation would be liable for such omission.

The wrongful act or a wrongful omission must be one recognized by law. If there is a

mere moral or social wrong, there cannot be a liability for the same.

For example, if somebody fails to help a starving man or save a drowning child, it is

only a moral wrong and, 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.

b. Legal Damage -

In order to be successful in an action for tort, the plaintiff has to prove that there has

been a legal damage caused to him. It has got to be proved that there was a wrongful

act-an act or omission- causing breach of a legal duty or the violation of a legal right

vested in the plaintiff. Unless there has been violation of a legal right, there can be no

action under law of torts. If there has been violation of a legal right,

Injuria Sine Damno

Injuria - Legal injury (not ordinary injury)

Sine -Without

Damnum - Damage

Injuria sine damno means violation of a legal right without causing any ham loss

or damage to the plaintiff.

There are two kinds of torts.

Firstly, those torts which are actionable per se, i.e., actionable without the proof of

any damage or loss. For instance, trespass to land is actionable even though no

damage has been caused' as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused

by an act.

Injuria sine damno covers the first of the above stated cases. There is no need to

prove that as a consequence of an act, the plaintiff has suffered any harm. For a

successful action, the only thing which has to be proved is that the plaintiff's legal

right has been violated, i.e., there is injuria.

Ashby V. White (1703) I.E.R. 417 It is a leading case explaining the maxim

“injuria sine Damnum” The plaintiff was a qualified voter at a Parliamentary

election. The defendant was a returning officer. The defendant wrong fully refused

to take Plaintiff’s vote. The candidate to whom the plaintiff wanted to vote won in

the election. There was no actual damage suffered by the Plaintiff. The plaintiff

sued the defendant alleging that the defendant did a wrongful act by restraining

him not to vote.

Judgment. The court held that – If the plaintiff has a right, he must of necessity

have a means to vindicate and maintain it, and a remedy, if he is injured in the

exercise of enjoyment of it; and indeed, it is a vain thing to imaging a right without

a remedy; for want of right and want of remedy are reciprocal.”

In Bhim Singh v. State of J. & K (AIR 1986 SC 494) the petitioner, an M.L.A. of J

& K. Assembly, was wrongfully detained by the police while he was going to attend

the Assembly session. He was not produced before the Magistrate within requisite

period. As a consequence of this, the member was deprived of his constitutional

right to attend the Assembly session. There was also violation of fundamental right to

personal liberty guaranteed under Article 21 of the 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 were

awarded to him.

Damnum Sine injuria

Damnum – Damage

Sine – without

Injuria – Legal injury (not ordinary injury)

Damnum sine injuria

The maxim “damnum sine injuria”means damage or loss without infringement of

legal private right in rem.and no action lies for mere damage or loss , however

substantial ,caused by an act which does not infringe some legal right of the

plaintiff .According to salmond “There are many acts which though harmful are not

wrongful and give no right of action to him Who suffers their effects “The person

Who suffers the harm cannot have the remedy in the court of law because the exercise

of a legal right by one person resulted in damages to the other ,without violation of his

right.

Gloucester Grammar School Case (1410 Y.B. Hill 11)

The plaintiff was maintaining a School. They charged 40 pence per student per

quarter. The defendants established a rival school near to the plaintiff’s school.

Due to the competition, the defendants reduced the fee from 40 pence to 12 pence

per student. It caused a considerable loss to the Plaintiff. They used the defendants.

The court held that Danmum may be abseque illjuria, as if I have a .mill and my

neighbour builds another mill whereby the profit of my mill is diminished, I shall have

no action against him, although I am damaged..... But if a miller disturbs the water

from going to my mill, or does any nuisance of the like sort, if shall have such action

as the law gives.

In Chesmore v. Richards(1859)7 HCL 349 )the plaintiff, a mill owner, was for the

past 60 years, using water for his mill from a stream which was fed by rainfall

percolating through underground strata to the stream, but not flowing in defined

channels. The defendants sunk a well on their land and pumped large quantities of

water, which would otherwise have gone to the plaintiff's stream, thereby causing

losses to the plaintiff. The defendants were held not liable.

In Ushaben v.Bhagyalaxmi Chitra Mandir (AIR 1978 Guj .13).the sued for plaintiff

a permanent injuction to restrain the defendants from exhibiting the film named “jai

santoshi maa”It was argued that the film hurt the religious feeling of the plaintiff so

far as goddesses Saraswati and Laxmi were depicted as jealous and were ridiculed. It

was held that hurting religious feeling had not been recognized as a legal

wrong .since there was no violation of a legal right request of injunction was turned

down.

c. Legal Remedy

“Ubi jus ibi remedium “(there is no wrong without remedy)

The law of torts is said to be the development of the maxim “ubi jus ibi remedium”

Jus means the legal authority to demand reparation or something Remedium means

the right of action.”Ubi jus ibi remedies “means there is no wrong without a

remedy .In other words “where there is a right, there is a remedy or there is no right

without a remedy. There was no remedy there was no right .the law was “ubi

remedium ibi jus” (where there is remedy is a right) If a person has legal right he

should have the means to maintain it. Law helps him not only to enjoy that right, but

also provides remedy for any violation of that right.

A right infringed is required to be legal and the remedy sought also is required to be

legal. The legal right and the legal remedy are two sides of the same coin. There

cannot be a remedy for every breach of moral or political right but there is always a

legal remedy for every breach of legal right.A legal right vested in a person imposes a

duty on another person .If the person who is obliged to do that duty fails to do his

duty he violates the right of the first man and he should compensate for the injury

caused.

The case of Ashby v. White (1703)11 sm cl 251) established for the first time the

principle of “ubi jus ibi remedium”and it was laid dowen by Lord Holt C.J.that “If

the plaintiff has a right, he must of necessity has a means to vindicate and maintain it,

and indeed it is a vain thing to imagine a right without a remedy, for want of right

and want of remedy are reciprocal.

Difference between Torts and crime

I. A tort is a kind of civil wrong which

Gives rise to a civil proceeding

I. A crime is an offence against state

which Gives rise to a criminal

proceeding

II. In a tort, the plaintiff is the injured

party

II. In a crime, the state is the injured

party.

III. A tort is a Violation of the private

Right of an individual considered as

an individual.

III. A crime is a breach of public right

which affects the whole community.

IV. In a tort the injured party is awarded

compensation or damages.

IV. In a crime the wrongdoer is punished.

V. In torts the purpose of awarding

compensation to the injured party is

to make good the loss suffered by him

V. In a crime the purpose of criminal

law is to protect the society by

preventing the offender from

committing further offence

Difference between Torts and breach of contract

Torts Breach of Contracts

I. In a tort the duties are imposed by

law

I. In a contract the parties, with their

free consent undertake to perform

certain duties

II. A torts is violation of a right in

rem i:e right exercisable against

the whole world

II. A breach of contract is a violation of

a right in personam i:e right

exercisable against a definite person

or persons

III. In case of a torts the suit is for

unliquidated damages

III. In a breach of contract the suit is for

liquidated damages

IV. There is no privity in a torts

because it is always inflicted

against the will of the parties

injured

IV. In a contract there must always exist

privity between the parties that is a

binding legal tie between them

V. In tort a man is held liable for

damages arising from special

circumstances of which he has no

knowledge.

V. If there are special circumstances

under which a contract was made and

they were wholly unknown to the

parties breaking the contract, he is

not liable for damages solely to those

circumstances.

PERSONS PERSONS WHO CANNOT BE SUED. WHO CANNOT SUE?

Introduction

Exemptions to General Principle of Personal Capacity

Persons who cannot sue?

Convicts (felons)

Alien Enemy

Husband and Wife

Corporation

A child in Mother's Womb:

Bankrupts or Insolvents

Foreign State

Persons who cannot be sued.

Crown or king

Public Officials

Judicial Officers

Foreign Sovereigns

Ambassadors

Infants/Minors

Lunatics or persons of Unsound Mind

Drunkard

Corporation

A Trade Union

INTRODUCTION

Sir Frederick Pollock states, "There is no limit to personal capacity either in becoming

liable for civil injuries or in the power of obtaining redress for them". The general principle

is "All persons have the capacity to sue and be sued in tort." But, there are certain exceptions

to this general rule and is subject to modification in respect of certain categories of persons.

Some persons cannot sue and some persons cannot be sued.

Exemptions to General Principle of Personal Capacity

Persons who cannot sue?

The following persons cannot sue due to their personal capacity:

Convicts (felons)

A convict is a person against whom judgment of death or penal servitude has been

pronounced on any charge of treason or felony.

English law - "Criminals even when undergoing imprisonment, have the same right of action

for torts as a man with a blameless life. Those who break the law remain the Queen's

subjects, they are not her enemies.”

In India- may sue' and be sued for torts both to his person and property Article 21 of the

Indian Constitution says that “no person shall be deprived of his life or personal liberty

except according to procedure established by law” A prisoner or even a convict is entitled to

the precious right guaranteed by Article 21 of the Constitution.

Alien Enemy

‘Alien enemy' means a person who by reason of owing a permanent or temporary allegiance

to a hostile power, becomes, in time of war, impressed with the character of an enemy. Alien

enemy is a person of hostile nation or a person residing in or carrying on business in enemy

territory, whatever his nationality”

In India- the law is different An alien enemy is a person who voluntarily resides or carries on

business in a country at war with India. As residence in enemy territory is the real test, even a

citizen of India resident there will fall within the description. An alien enemy residing outside

India or in India without the permission of the Government cannot sue in an Indian Court.

Husband and Wife

In England- at common law, prior to Married Women's Property Act, 1882 and the Law

Reform (Married Women and Tortfeasors) Act, 1935, a married woman could not sue for any

tort committed by a third person unless her husband joined with her as plaintiff. It was also

not possible to sue against her without making her husband as a defendant. But after these

acts, it has become possible that a married woman can sue or can be sued without making her

husband as a joint party. Under the Married Women's Property Act, 1882, a husband also is

liable for pre-nuptial torts of his wife to the extent of the property he acquired through her.

The Law Reform (Married Women and Tortfeasors) Act, 1935 has changed the position and

now husband is not liable for any tort of his wife, whether committed by her before or after

marriage merely because he is her husband. If the husband and wife are joint tortfeasors, they

can, be made liable jointly as such.

(Action between spouses)

In England- at Common law, the wife could not sue her husband nor could the husband sue

his wife, if the other spouse committed a tort. But Married Women's Property Act, 1882

permitted a married woman to sue her husband in tort for the protection and security of her

property,' but she could not sue her husband if he caused her any personal injuries. Thus if the

husband damaged her watch she could sue for the same, but if he negligently fractures her

legs she could not bring an action for that. The husband had no right at all for an action for

any kind of harm caused by his wife to him.

Where the husband while acting as an agent or servant for some third party committed a tort

causing injury to his wife, the wife could sue the third party. In Broom v. Morgan [(1953) 1

OB 597], it was held that if a husband committed a tort against his wife in the course of

employment of his master, the master was liable for the same.

The rule prohibiting actions between spouses has been abolished by the Law

Reforms (Husband and Wife) Act, 1962. Now the husband and wife can sue each other as

if they were unmarried.

In India- the wife may sue her husband for torts to her separate property and the husband

may sue his wife for torts to his property. But neither of them can sue the other for assault,

defamation, or other personal injuries.

In India, Section 7 of the Married Women's Property Act, 1874 provides, "A married

woman may maintain a suit in her own name for the recovery of property of any description

which by force of the said Indian Succession Act, 1865, or of this Act, is her separate

property, and she shall have, in her own name the same remedies, both civil and criminal,

against all persons, for the protection and security of such property, as if she were

unmarried, and she shall be liable to such suits, processes and orders in respect of such

property as she would be liable to if she were unmarried.”

The wife cannot sue her husband for personal injuries on the basis of personal laws of

different communities, but she can sue her husband's employer if husband has committed a

tort against her during the courts of employment. It follows that on the basis of parity, a

husband may also recover against 'her employer if she has committed a tort against her

husband during the course of her employment.

Corporation

A Corporation is an artificial juristic person, It is considered as a legal person, In

Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915 AC 705 (713)],

Viscount Haldone LC observed that "A corporation is an abstraction. It has no mind of its

own any more, than it has a body of its own; its active and directing will must consequently

be sought in the person. Of somebody who for some purposes may be called an agent, but

who is really the directing mind and will of the corporation, the very ego and centre of the

personality of the corporation. The features of corporation lie in name, perpetuity of existence

and capacity to sue and be sued.

A. Corporation can sue for torts against itself, for malicious presentation of a winding-

up petition.

B. A libel charging it with insolvency or with dishonest or incompetent management.

C. A Corporation may bring action for those civil wrongs which affect its property. It

can sue for defamation where words cause injury to its reputation in relation to its

trade or business. But Corporation cannot sue for those torts which are not affecting

property etc. For instance corporation cannot sue for any tort of defamation. But if

corporation is involved in commercial activities and a publication adversely affects.

Corporation business then it may bring actions for the wrongs. A corporation shall not be

responsible for malicious prosecution. It cannot sue for certain torts such as assault, battery,

false imprisonment etc., because they cannot be committed against corporation.

A corporation could be held liable not only for trespass, libel, turnover, conversion or

negligence, but also for malicious prosecution or fraudulent misrepresentation.

A corporation can be sued even for torts in which malice is an essentials condition provides

the following requirements are fulfilled.

The tortious act is committed by the agents or servants within the scope of employment or

is authorized or ratified by it.

(i) The act committed is within the powers of the corporation.

(ii) A corporation created by a statute is Subject to liabilities which the

legislature intends to impose.

A corporation is liable for torts committed by its agents or servants as an employer for the

torts of his servants, when the tort is committed in the course of doing an act within the scope

of the powers of the corporation.

A corporation can be sued for malicious prosecution, privileged occasion, or for fraudulent

misrepresentation, no less than for trespass, conversion, or negligence.”

A child in Mother's Womb:

In England- for a long time, an infant can sue for any tort done to him, but he cannot

maintain an action for injuries sustained while en ventre sa mere (Le. in the mother's womb).

In Walker v. G.N. Ry [(1891) 28 LR (IR) 69, it was held that the child could not maintain

an action for damages, where a woman who was with child in womb was injured by a

railway accident as a result of which the child was born deformed. The decision was based

on the ground that there was no duty of care to an unborn person, who was not a legal

person. Salmond argued why an existing but unborn child should be deprived of the

protection against willful or negligent injuries inflicted upon it. In Elliot v. Joicey [(1935) AC

204 (238-41)] it was allowed damages against manufacturers of the drug 'thalidomide' which

when used by expectant mothers, produced deformed children In Re George and Richard

[(1871) 3 A & E 466], it has been held that a child en ventre sa mere can claim under the

Fatal Accidents Act, 1846.

A child cannot sue for injuries which were inflicted on him while he was in the mother's

womb because such injury was inflicted on the mother, but law has mitigated arising out of

the situation. Under common law such a principle of law proved most unsatisfactory, a

procedure was developed which entitled a child to sue "rough a next friend for any tort is

affecting his body or property. Thus et1lld in mother's womb may file suit for the recovery

of damage.

Bankrupts or Insolvents

An insolvent person whose property is administered for and distributed among his creditors

in accordance with the provisions of a system of laws is called 'bankrupt'. When a person

files an insolvency petition before the court, he is declared as 'insolvent' and an Official

Trustee or Assignee or Receiver is appointed by the court for the benefit of his creditors.

An insolvent may be sued for a tort committed by him either before or during insolvency.

Foreign State

In England,- foreign State cannot sue in court, unless such State has been recognized by

Her/his Majesty.

In India- as regards foreign State, under Section 84 CPC a foreign state may sue in any court

in India, provided that such State has been recognized by the Central Government, and

provided also that the object of the suit is to enforce a private right vested in the Head of the

State or in any Officer of such state, in his public capacity.

Persons who cannot be sued.

Under law of torts there are following types of persons who cannot be sued:

Crown or king

In England- it is a fundamental principle that 'the king can do no wrong' and the immunity

of the crown from civil liability is based on the above maxim. So an action for personal

wrong will not lie against the crown. He is not responsible even for the wrongs committed by

his servants in the course of employment.

In India- the Maxim 'lex non potest peccare' i.e., the king can do no wrong had no place in

ancient or in medieval periods. Kings in both the periods subjected themselves to the rule of

law and system of justice prevalent like ordinary subjects of the States.

In present India, there is no king. As per the provisions enshrined in the Constitution of

India, the President and the Governors shall not be answerable to any court (i) for the

exercise and performance of the powers and duties of their office; (ii) for any act done or

purporting to be done by them in the exercise and performance of those powers and duties.

Under Section 87B of the CPC, no ruler of any former. Indian State may be sued in any court

except with the permission of the Government of India.

Public Officials

Government Officials in England are employed in' the service of the crown and crown

cannot do any wrong and, they cannot be sued in their representative capacity for torts

committed by them of by their subordinates. They are not liable for the torts committed by

their subordinates unless they have expressly authorized or ratified them for the obvious

reason that their subordinates are not their servants. No action lies against a public official for

acts done in exercise of sovereign power provided that the act is such as can be performed

only by sovereign. This immunity is provided on the principle of respondent superior.

In India- if a tort is committed by the Government servant during the course of employment

then Government shall be held responsible union of India as well as respective States are

responsible for the civil wrong of Government servants.

Article 300 of the Constitution of India enacts that the Government if India may sue

and be sued by the name of the Union of India; a State may sue and be sued in the name

of the State.

The Supreme Court got the opportunity to examine the position in the State of Rajasthan v.

Mst. Vidyawati [AIR 1962 SC 933]. In this case a driver of Jeep Car owned and maintained

by the State of Rajasthan for the official use of the Collector of the district, drove it rashly

and negligently while coming back from the workshop where the car was repaired. An

accident occurred and the husband of Vidyawati was killed. The court held that the State

can be made liable for the acts of its servants, like any other employer. But the court made

it clear that immunity did not extend to all acts done by the Government servants during

the course of employment, but only to such acts as done in the exercise of the sovereign

power.

Judicial Officers

No Judge, Magistrate, Collector or other persons 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. Judicial Officers' Protection Act, 1850 grants protection to a judicial officer

for any act done or ordered to be done by him in the discharge of his judicial duty. He is

protected even though he exceeds his jurisdiction provided that at that time he honestly

believed that he had jurisdiction to do or order the act complained of.

The protection granted to a judicial officer is absolute provided that the act done by him in

discharge of his judicial duties was within his jurisdiction. No such protection is granted if a

magistrate is acting mala fide and outside his jurisdiction.

In Sailajanand Pandey v. Buresh Chandra Gupta [AIR 1969 Pat. 194], the magistrate

acting malafide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The

Patna High Court held that he was not entitled to the protection given by the Judicial

Officers' Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment.

In State of UP v. Tulsi Ram [AIR 1971 All. 162], the judicial magistrate signed an order

for the arrest of the acquitted persons along with others. The Allahabad High Court opined

that in the performance of the purely executive function, the judicial officer signed the

warrants without looking into the orders of the High Court and the Sessions Court. He

failed to apply his mind to the facts of the case or to directions given to him. It cannot be

said that he was protected at all by the Judicial Officers' Protection Act in signing warrants

negligently.

Foreign Sovereigns

Municipal Courts of a country cannot take cognizance of foreign sovereigns. They are

immune from the jurisdiction of the municipal courts. Under international law all sovereigns

are equal. They enjoy such special privileges. But if a sovereign voluntarily submits himself

before the court then court may take cognizance. In India also it is general law of the

country that foreign sovereigns are not amenable to jurisdiction of local court.

The plea of sovereign immunity, when available, cannot absolve the wrongdoer. In Mrs.

Usha Aggarwal v. Union of India [AIR 1985 P & H 279], it was observed that its can ensure

only for the benefit of the State where it is sought to be held vicariously liable for the acts of

its servants, acting in the course of their employment

In State of Orissa v. Mist. Amruta Devi [AIR 1987 Orissa 317] it was observed that the plea

of sovereign immunity can be available where the powers can be exercised only by a

sovereign or a person by virtue of delegation of such powers to him.

Ambassadors

Ambassador or a diplomatic agent cannot be sued for torts either in the Courts of England or

in the Courts of India on principles of international policy.

In India- no suit can be brought against an Ambassador, or a High Commissioner on other

diplomatic envoy without the consent of the Government of India. With a view to give effect

to Vienna Convention on Diplomatic Relations, 1961, Indian Parliament enacted the

Diplomatic Relations (Vienna Convention) Act, 1972. Section 4 of the Act provides that if it

appears to the Central Government that a State which is a party of the Vienna Convention

on Diplomatic Relations, 1961, is in breach of its obligations arising thereunder or, that the

privileges and immunities accorded to the Indian Mission or members thereof in the territory

of any State which is a party to the Vienna Convention, are less than those conferred by this

Act on the Diplomatic Mission of the State or members thereof, the Central Government may

notwithstanding anything contained in this Act, by notification in the Official Gazette,

withdraw such of the privileges and immunities so conferred from the diplomatic mission of

the state or from members thereof as may appear to the Central Government to be proper.

The immunity given to the Ambassadors extends also to the family of such Ambassador. The

remedy against an Ambassador is to move one's own Government to induce the Government

of that country to take action against the said Ambassador, and his staff, which they may

think fit to satisfy the· Government which complains.

Indian law Section 86· of CPC, 1908 provides that suit against ambassadors and envoys

may be' brought but only with the consent of the Central Government certified in writing

by a Secretary to that Government. Section 86 further provides that an Ambassador or

diplomatic agent and his family have the same protection.

Infants/Minors

'Infant' is a child during the first few years of its life (' Infantia' (Lat) means childhood to

the age of seven years); (in law) minor. An 'infant' means, in law, a person who is below

eighteen years of age in India and twenty-one years in England. The first rule as to liability

of minors for their torts is that ordinarily infancy per se is no defence to an action for torts.

Infants are liable for wrongs of omission as well as for wrongs of commission.

In Swaroop Kishore v. Gowardhandas [AIR 1956 MB 84], a boy of 16 years slapped the

plaintiff in presence of several persons and pleaded that defendant cannot be held liable in

damages as he was a minor. But this contention was rejected as a minor can be held liable

for his torts like an adult. The rule of exemption applies where an act is innocent in itself

but becomes tortious by the addition of some ingredient such as intention, malice,

knowledge or state of mind in the person charged as a wrong doer that the age and mental

capacity of the infant becomes relevant.

Lunatics or persons of Unsound Mind

The term 'lunatic' is derived from the Latin 'luna' in consequence of the supposed influence

of the moon on mental disorders and from 'Iueidus' with reference to the lucid intervals

enjoyed by sufferers from lunacy.

'Lunatic' means an idiot or person of unsound mind. The word 'idiot' and 'unsoundness of

mind' indicate an abnormal state of mind as distinguished from weakness of mind or

senility following old age. A man of weak memory or of even more weak mental strength

cannot be called an idiot or a man of unsound mind.

“Unsoundness of mind' is the state of not being mentally sound or normal. The term 'unsound

mind' means 'not mentally sound or moral; not sane'. The term 'unsound mind' signifies 'non

compos mentis' and lunacy. Lord Eldon said that 'unsound mind' imported a state

contradistinguished both from idiocy and from lunacy, and yet such as to justify a

commission. It does not necessarily import incapacity.

For the defence of lunacy, Salmond lays down the following rules:

1) in wrongs based on malice or some specific intent, lunacy may be a good defence as

disproving the existence of any such malice or intent;

2) In wrongs of wilful interference with the person or property, such as trespass,

assault or defamation, it is no defence that the defendant was under an insane

delusion or could not realise that what he was doing was a wrongful act. If,

however, the insanity is so extreme that the act cannot be held to be a voluntary act,

there cannot be any liability where intention is an ingredient of the particular test

committed by him;

3) In wrongs of absolute liability, lunacy is no defence at all;

4) In wrongs of negligence, where the conduct of the defendant must be judged by

reference to his knowledge, or means of knowledge, lunacy may be relevant as

evidence that the necessary knowledge or means of knowledge did not exist.

Drunkard

In the law of tort drunkenness is not a good defense. The drunkard knows the consequences

of what he does. An act done voluntarily knowing the nature of the act is a tort liable for

damages, Hence drunkard is liable for the torts if he drinks voluntarily and acts in such a way

to injure others. If A administers intoxicants heavily in B's drinks against his will, or by

fraud, or by mistake then B may not be held liable in tort provided he is unable to

differentiate between right and wrong.

Corporation

A Corporation cannot be sued, unless:

I. the act done was within scope of authority of the agent employed by it, and

II. The act done was within the purpose of the incorporation.

The same principles which govern the vicarious liability of a principal for torts of his

agents or of a master for torts of his servants, govern the liability of a corporation for the

torts of the agents and officials. But a corporation can sue and be sued, for

1. defamation;

2. deceit; and

3. Malicious prosecution.

Trade Union

A trade union is a legal person like university or corporation. It shall not be sued for the torts

which involve mental condition necessary for its commission but trade union may be held

responsible, consequently may be sued for the torts committed by its members in course of

prosecution of the object of the trade union. But under Indian Trade Union Act, a trade

union may be sued like other persons.

Unit – I

Q.1. Define Tort and explain its essential elements.

Q.2. Explain the maxim with the help of case law.

a) Injuria Sine Damnum

b) Damnum Sine Injuria

Q.3. Write the difference.

a) Tort and Crime

b) Tort and contract

Q.4. “All persons have the capacity to sue and be sued in Tort”. Discuss the

Exceptions to this general rule.

BOOK RECOMMENDED:

1. Avtar Singh Law of Consumer Protection Principles& practice

2. D.D.Basu LawofTorts

3. Dr.R.K Bangia Law of Torts

4. Dr.S.R.Myneni Law of Torts