The question of capacity in the Law of Torts determines the legal competency of an entity, whether natural or artificial, to either bring an action as a claimant (who may sue) or to be held liable as a defendant (who may be sued). Capacity is governed by the general principle that all persons capable of possessing a legal right or incurring a legal duty may be parties to a tort action, subject to crucial common law and statutory exceptions.
I. Who May Sue (Capacity of the Plaintiff) #
The general rule is that any person who suffers a legal injury (injuria) has the right to sue. This right is contingent on the claimant being able to demonstrate that they possess a legal personality.
A. Persons of Sound Mind and Major Age #
All sane adults who are citizens of India, or legally present aliens, have full capacity to sue for torts committed against them.
B. Minors/Infants #
A minor (a person below 18 years of age) may sue through their next friend (guardian or any competent adult acting on their behalf) to recover damages for a tort committed against them.
C. Corporations #
An artificial legal person, such as a company or corporation, can sue in its corporate name for torts that affect its proprietary interests or reputation.
- Torts against Corporations: A corporation may sue for defamation that affects its business, credit, or property (e.g., libel that implies insolvency). However, it cannot sue for torts that can only be suffered by a natural person, such as assault or false imprisonment.
D. Married Women (Historical Context) #
Historically, under Common Law, a married woman could not sue without joining her husband. This disability has been completely abolished in India and most common law jurisdictions by legislative enactments (e.g., the Married Women’s Property Act, 1882, in England, and subsequent modern codes in India), granting married women the same capacity to sue as single women or men.
E. Felons and Insolvents (Historical/Modern) #
Historically, convicted felons and insolvents faced certain restrictions on their capacity to sue. These disabilities have been largely removed:
- Insolvent: An insolvent person retains the capacity to sue for purely personal torts (e.g., defamation, assault). However, for torts affecting their property, the right vests in the Official Receiver or Assignee.
II. Who May Not Be Sued (Capacity of the Defendant/Immunities) #
While the general rule is that any person who commits a tort may be sued, several classes of persons or bodies enjoy partial or complete immunity from tort actions, based either on public policy, their special status, or lack of legal capacity.
A. Sovereign and State Bodies (The Doctrine of Sovereign Immunity) #
This is the most critical exception, rooted in the Common Law maxim, “The King can do no wrong.”
- Pre-Constitution Context: In India, the liability of the State was largely governed by the Government of India Act, 1935, and earlier statutes, distinguishing between sovereign and non-sovereign functions.
- Modern Indian Position: The Supreme Court has repeatedly affirmed that the State cannot claim immunity for torts committed in the exercise of non-sovereign functions (commercial, welfare, or administrative activities). However, immunity is still frequently recognised for acts done in the exercise of sovereign functions (e.g., defence, police power, administration of justice).
Case Analysis: Kasturi Lal Ralia Ram Jain v. State of U.P. (1965) (SC) #
| Element | Description |
|---|---|
| Facts | The claimant’s gold and silver were seized by police officers and subsequently misappropriated by a police head constable who absconded to Pakistan. The claimant sued the State of U.P. for the return of the property or damages. |
| Issue | Was the act of the police officers (seizing and safeguarding the property) committed in the exercise of a sovereign function, thereby granting the State immunity from tortious liability? |
| Rule | The State is immune from liability for torts committed by its servants while acting in the exercise of sovereign powers. Actions related to police power fall within this category. |
| Application | The Supreme Court held that the police force’s power to seize and keep property was an act that could not have been done by a private individual and was inextricably linked to the sovereign function of maintaining law and order. |
| Conclusion | The State was granted immunity, and the claim for damages was dismissed. (Note: While this judgment still stands on the distinction, its practical scope has been heavily criticised and curtailed by subsequent liberal rulings). |
B. Minors/Infants #
A minor may generally be sued in tort. The law’s focus is on the act committed, not the age of the doer.
- Liability Rule: A minor is liable for torts that do not require a specific mental state (e.g., negligence, trespass).
- Exception: If the tort is merely a breach of contract disguised as a tort, the minor cannot be held liable, as this would circumvent the protection given by the law of contract. They are generally not liable for torts requiring specific malice, as their capacity to form such intent is often questioned.
C. Lunatics/Persons of Unsound Mind #
A lunatic can be sued and held liable for torts, provided the nature of the tort does not require a specific intention or malice that their mental state prevents them from forming.
- Rule: For torts like trespass, where intent means only the intention to commit the act itself (not the harm), a lunatic is liable. For torts like malicious prosecution or defamation (requiring malice or animus nocendi), liability is unlikely to be established.
D. Corporations #
A corporation can be sued for almost all torts, including those requiring intention (e.g., deceit, fraud, malicious prosecution).
- Doctrine of Vicarious Liability: A corporation is primarily liable for the torts committed by its servants or agents acting within the scope of their employment.
E. Foreign Sovereigns and Ambassadors #
These individuals and entities enjoy near-absolute immunity from civil suits under the principles of International Law (specifically the doctrine of State Immunity and the Vienna Convention on Diplomatic Relations, 1961). They cannot be sued unless they voluntarily waive their immunity.
F. Trade Unions #
In many jurisdictions, trade unions are granted statutory immunity from actions in tort for acts committed in furtherance of a trade dispute, based on the need to protect legitimate collective bargaining and industrial action. This immunity is generally provided under specific labour legislation.
III. The Capacity of the Unborn Child to Sue (The Nasciturus Principle) #
This deals with the capacity to sue for pre-natal injuries, a complex area where legal personality must be determined retroactively.
A. The Contingent Right to Sue #
The legal principle in most common law systems, including India, is that a child injured while in the womb due to the negligence of a tortfeasor may sue for those injuries, provided they are subsequently born alive.
- Rationale: The duty of care owed by the defendant (e.g., a negligent driver, an errant doctor) extends to the mother and, contingently, to the foetus. The legal right to sue is vested in the child immediately upon live birth.
B. Indian Judicial Trend #
Indian courts, while lacking a specific statute equivalent to the UK’s Congenital Disabilities (Civil Liability) Act, 1976, generally recognise this right based on principles of justice, equity, and good conscience. The focus is on the foreseeability of harm.
- Foreseeability of Harm: The tort is committed against the foetus when the injury occurs, but the cause of action accrues and is enforceable only upon the child being born alive, thus attaining legal personality.
IV. Liability of Joint and Several Tortfeasors #
This topic addresses the liability structure when multiple defendants are involved in a single tortious act or damage.
A. Joint Tortfeasors #
Joint tortfeasors are two or more persons who are responsible for the same damage in the following scenarios:
- Agency: One acts as the agent of the other.
- Vicarious Liability: Master and servant.
- Concerted Action: They act in furtherance of a common design or joint action.
- Liability Rule: Joint tortfeasors are jointly and severally liable. The claimant can recover the full compensation from any one of them, and that single defendant then has a statutory right to contribution from the co-tortfeasors.
B. Several Tortfeasors #
Several tortfeasors are persons who commit independent acts which, though separate, combine to produce the same damage.
- Liability Rule: The liability is several. Each defendant is liable only for the loss attributable to their own wrongful act, though in practice, if the damage is indivisible (e.g., two cars crashing into a third), courts may impose joint and several liability.
Case Analysis: Brooke v. Bool (1928) (Joint Liability) #
| Element | Description |
|---|---|
| Facts | The claimant rented a shop from the defendant. The defendant and his lodger both searched the shop for a gas leak. The lodger struck a match, causing a large explosion. The defendant was not present when the match was struck, but the search was a joint effort. |
| Issue | Was the defendant jointly liable for the lodger’s negligence, despite not personally striking the match? |
| Rule | Persons who act in concert or in furtherance of a common design, where the act of one is the act of all, are joint tortfeasors. |
| Application | The court held that the search for the leak was a single, agreed-upon joint enterprise. The lodger’s act of striking the match was done in the course of and to further that joint enterprise. |
| Conclusion | The defendant (Bool) was held jointly and severally liable with his lodger for the damage caused by the explosion, even though he did not physically commit the negligent act. |
V. Extinguished Capacity (Historical/Rare) #
Historically, certain causes of action could not be brought against the tortfeasor by the injured party due to a temporary suspension of rights, such as the historical common law disability of a husband and wife to sue each other (inter se), which has been abolished in modern law.
